Witnessing Wills In A Covid-19 World

As the legal profession is aware, under current UK law, for a will to be valid it must be signed by the testator in the presence of two independent adults. However, there are a number of discussions taking place looking at the way in which the rules around wills should be interpreted due to the Covid-19 pandemic.

It is true that lockdown has complicated the wills process, and this continues to be a challenge, even with restrictions beginning to lift. We’ve seen lawyers interpret the law in a number of ways to accommodate the restrictions, but still abide by the letter of the law, i.e. witnessing wills through a window. However, some people have also been trying to get around the issue by using technology and having their witnesses watch them sign their will using video conferencing software, such as Zoom. Unlike witnessing a will through a window, video conferencing services mean that a witness is not physically present, and so wills would not be valid.

With the confusion around the legality of wills made during lockdown, some media outlets are reporting that the Ministry of Justice is looking at a blanket validation of wills made from January 31st, 2020, to ensure wills made via video conferencing during lockdown are legally binding. We’ve also seen Gina Miller, with the support of Baroness Kennedy, campaigning for the rules around the execution of wills to be relaxed during the current pandemic, including allowing wills to be made verbally via video, as well as with a digital signature.

It is imperative that the legal profession moves with the times, and I certainly agree that we need to look at the law covering wills, considering we’re using the Wills Act of 1837. Nonetheless, there are a number of ways in which witnessing wills without being physically present could cause problems.

One of those being that witnesses aren’t able to see if there’s anyone else in the room or behind the camera influencing the testator. This is especially pertinent right now given that older and vulnerable people have been shielding for over three months, which can significantly impact someone’s mental health. If this individual then decides to change their will to leave everything to a family member who has been supporting them through lockdown, there is a huge risk of a will objection from another family member being upheld, if it can’t be proven that the testator wasn’t under undue influence or had full mental capacity when making the will.

There is also the issue that could arise as a result of the technology utilised. The global pandemic has demonstrated to us more than ever before, how technology can enhance our personal and working lives. Nonetheless, we all know how quickly technology evolves, which means lawyers could be in with problems reading the wills further down the line, if they’re hosted on digital programmes. I’m currently dealing with a will dated from 1995 – if that had been on a 3 ½ inch floppy disk (the most up to date technology at the time), my team and I would be facing a real struggle to access the document nowadays.

Fundamentally, the blanket validation of wills made via a video conference, as has been suggested, is very concerning for us at Solicitors for the Elderly (SFE). In order to protect the older and most vulnerable individuals in our society, each case should be decided on facts and merits. Giving courts the power to make a blanket validation would not get rid of the chaos but create even more.

While it may be more difficult than ever to help clients create a will, it’s vital that we, as a profession, find ways to work around the restrictions safely, while still protecting the rights of some of society’s most vulnerable, for example having the document witnessed at a distance outside, or at one metre plus with PPE.

We’re calling on the profession to ensure that practices put in place to abide by social distancing guidelines still safeguard the UK’s elderly and vulnerable. And that we don’t back a sweeping validation of video wills, but instead consider them on a case by case basis.

2 Comments

  • test

    Thank you Elaine for this thought provoking article.

    I am one of those solicitors you describe as ‘trying to get around the issue by using technology’. I managed what was probably the first fully remotely executed will in the UK on 1 May for a self isolating client at the Taunton offices of Solicitors Title LLP.

    Just like you, I was perturbed and discouraged initially, when confronted with this challenge presented by my client’s circumstances: by the legal uncertainty, the practical and technical difficulties.

    However, when I researched the issue for myself, I found that the Law Commission and the Law Society are simply wrong in opining that a physical presence is an absolute requirement. The cases cited in the LC’s 2017 report, Making a Will, do not actually support the proposition it advances; indeed the almost converse – I recommend Hudson v Parker (1844) to you. Perhaps you have spotted an authority that I missed, after all there is more than three and a half centuries of jurisprudence to trawl through.

    Absent express wording in the statute or any clear and relevant case authority specifically on the point, I beg to differ: the remote presence of a testamentary witness is perfectly capable of conforming to section 9 Wills Act 1837.

    It is in my opinion a feeble excuse to refuse a valuable service just because it has not been done before.

    You identify two areas of concern that I share: (i) the risk of undue influence and (ii) the need to ensure a digital legacy that ensurers that electronic wills are compatible / accessible to new technologies that have yet to be devised. Only the first point has any real relevance to the remotely executed wills that I manage. I trust that no one is seriously suggesting that video data files will be inaccessible in 30 years.

    Undue influence is an ever present threat that every practitioner needs to be conscious of. My fear is that this is a particularly acute risk where the testator attempts a DIY execution, which probably applies to the majority of wills. But unless i have missed something, the courts have not been inundated by legal challenges, even so. Still the risk is there.

    What your article appears to overlook is that a properly managed remote execution using video streaming is perfectly capable of taking reasonable precautions against undue influence. It is possible, with a laptop or iPad or a plug in webcam for that matter, to undertake a scoping survey of the testator’s environment and my protocol has a number of similar precautionary measures. Preliminary discussions and inquiries augment the protection. The fact that the entire process of approving, signing, acknowledging and witnessing is recorded in real time, by an independent professional, far from watering down the protection, in fact amounts to a significant enhancement of the conventional safeguards against undue influence or fraud.

    I have it direct from the government (with whom I shared my research) that it about to sanction the practice of video wills in some form or other. You will no doubt be aware that the remote execution of wills has been adopted in several foreign jurisdictions already. I am not alone in believing that it provides absolute protection in Covid 19 terms and, properly managed, it improves upon the protection against fraud, which is section 9’s the sole legislative objective.

    The emphasis here being on ‘properly managed’.

    I have invited the Law Society to join me in a campaign to make the remote execution of wills a reserved legal activity. This has been met by a stony silence. Given that video wills is about to be sanctioned by the government anyway, like it or not, shouldn’t this be the focus of our present concern. I would be delighted if you and other thoughtful practitioners would join me in urging the MoJ to extend the categories of reserved legal activities to embrace video wills.

    See https://www.todayswillsandprobate.co.uk/guest-writers/video-witnessing-is-valid/ for my article from 26 June.

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