Remote Witnessing of Wills During the COVID-19 Pandemic
Introduction
There has unsurprisingly been an uprise in the number of people making wills since the start of the COVID-19 pandemic, though social distancing measures have created problems for people in terms of complying with the witnessing requirements of section 9 of the Wills Act 1837 (“the Wills Act”).
A temporary amendment to the Wills Act therefore came into force on 28th September 2020 allowing wills to be witnessed remotely in England and Wales. The new law, introduced by Statutory Instrument 2020/952,[1] applies to wills made between 31st January 2020 (the date of the first confirmed case of COVID-19 in the UK) and 31st January 2022, though this can be extended or shortened as necessary. Importantly, the law does not affect any grant of probate (or anything done pursuant to a grant of probate) prior to 28th September 2020.
Whilst the law recognises the need for people who are shielding or self-isolating due to COVID-19 to be able to execute valid wills, there is some concern that the remote witnessing of wills may lead to issues regarding allegations of fraud or undue influence.
What was the Previous Law?
Section 9 of the Wills Act sets out the requirements for making and witnessing a will. These requirements remain in force:
No will shall be valid unless -
(a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
The legislation also applies to codicils, which must satisfy the same signing and witnessing rules that are involved in the making of a will. There are, of course, other requirements for the creation of a valid will (such as testamentary capacity) but these requirements are not altered by the temporary amendment to the Wills Act.
What are the Changes?
The Wills Act has been amended to state that whilst the new, temporary, legislation is in force, the ‘presence’ of those making and witnessing wills includes a virtual presence (via video-link) as an alternative to physical presence.
The government has issued guidance on the witnessing of wills under the new law.[2] A witness must have a ‘clear line of sight’ of the testator signing the document; importantly, under the new law, this means sight of the signature being made and not just the testator’s head and shoulders on camera. The testator must equally have a clear line of sight of the witnesses signing the will. Alternatively, guidance issued by the Society of Trust and Estate Practitioners (“STEP”) highlights that the testator/witness can acknowledge their signature whilst showing the same on camera.[3]
The Government made the decision not to allow electronic signatures as part of this temporary legislation due to the risks of undue influence or fraud. So, whilst technology can be used to assist in the witnessing of wills, the signatures of the testator and the witnesses must still be ‘wet’ signatures. An electronic signature inserted into the document on a computer will not suffice.
The Government also decided against introducing counterpart wills (identical copies of the same document, each signed individually by one person) as part of this temporary legislation. It was believed that the risks outweighed the benefits at this stage. Such risks were deemed to include:
(a) there being different versions of the will, each containing different contents;
(b) the witness signing the wrong document, and
(c) an increase in the risk of undue influence and fraud.
Signing a Will via Video Conference
When signing a will via video conference, the type of device and the video conference platform used is not important; what is important is that the witnesses can see the testator sign their name.
Ideally, the video conference should be recorded in case the will is ever challenged, and the recording retained. This may assist a court in the event of a will being challenged, the recording being relevant to the valid execution of the will, but also to any allegations of undue influence, fraud or lack of testamentary capacity.
It is also suggested by the Ministry of Justice that the testator makes a statement in the following (or similar) terms:
‘I [first name, surname], wish to make a Will of my own free will and sign it here before these witnesses, who are witnessing me doing so remotely’.
STEP identifies that it would also be advisable for the testator to name the witnesses when making the above statement. Importantly, although it is encouraged that the remote witnessing of a will should be recorded and retained, witnessing pre-recorded videos will not be permissible; the witnesses must see the will being signed in real-time.
Key Points Regarding Remote Witnessing
The below are some key points taken from the Government guidance on remote witnessing of wills:
- The testator should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well.
- By law, the witnesses must see the testator (or someone signing at their direction, on their behalf) signing the will. Before signing, the testator should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders.
- If the witnesses do not know the testator they should ask for confirmation of the person’s identity, such as a passport or driving licence.
- Ideally, the witnesses should be physically present with each other but if this is not possible, they must be present at the same time by way of a three-way video-link. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.
- After the testator has signed the will, it should then be taken (or posted) to the two witnesses for them to sign, ideally within 24 hours though delay will be inevitable where the will is posted. It must be the same document.
- For video-witnessed wills it may be advisable to mention that virtual witnessing has occurred when drafting the attestation clause, along with details of whether a recording of such is available and where the record is to be kept.
Comment
The Wills Act previously required the two witnesses to be in the physical presence of the testator, the purpose of which was commonly acknowledged to be for the protection of the testator against undue influence and fraud. It is therefore foreseeable that the reforms could lead to a rise in contentious probate cases as it will be harder for solicitors to ensure that they guard their clients against undue influence and/or fraud where the process takes place remotely. One of the inherent risks involved with witnessing a will by video conference is that whilst the witnesses may be able to see the testator on their screen, it is unlikely that they will be able to see the entire surroundings of the testator and there is therefore the risk that someone else is in the room with the testator, potentially exerting undue influence.
A second foreseeable problem is that due to the fact that counterpart wills were not deemed permissible under the new law, the original will must be sent back and forth between the testator and the witnesses. Whilst refusing to allow counterpart wills has the benefit of ensuring that, for example, different documents are not signed by mistake, there are several problems that can be anticipated:
Firstly, it provides more opportunity for the will to become lost, especially if being transmitted by post.
Secondly, there is the issue of loss of confidentiality. Under the old law, where witnesses were required to sign the will in person, they did not have to read the actual contents of the will before signing it and therefore the testator was able to keep the contents of the will confidential if they so wished. Where the will is to be sent to the witnesses to sign, there will be the opportunity for them to read the will (though there is still no requirement for the witnesses to read the contents of the will before signing). It will therefore be important for practitioners to advise their clients to choose their witnesses carefully; the witnesses need to be people that the testator trusts and it is essential that he/she does not object to the witnesses knowing of the contents of the will.
Conclusion
The temporary amendment to the Wills Act is a welcome one in the sense that it allows those who are potentially the most vulnerable to COVID-19 to validly execute a will whilst shielding or social distancing. However, the potential problems inherent in the new law are already evident. Practitioners are advised to retain a recording of the witnessing process where possible, and in any event to keep a detailed attendance note in case the validity of the will is ever challenged. They will need to advise their clients to choose their witnesses carefully and be extra vigilant in relation to fraud and/or undue influence where social distancing measures prevent them from being physically present with the testator.
[1] The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020
[2] <https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing> accessed 6 November 2020
[3]<https://www.step.org/sites/default/files/inlinefiles/Briefing%20note%20on%20execution%20of%20wills%20(E&W).pdf> accessed 6 November 2020
