This year has brought with it a seismic shift in the way we live our day-to-day lives. A common concern amongst our clients has been to ensure their affairs are in order at this crucial and uncertain time. The private client sector has remained fully operational throughout the COVID-19 pandemic, but that is not to say that we, as practitioners, have not had to adapt. One such change has been a more technology-based approach to the execution of Wills.
The Legal Requirement
In order for a Will to be valid, it must be made in accordance with the Wills Act 1837 (the Act). Under S.9 of the Act there is a requirement that the testator/testatrix must sign the Will in the presence of at least two adult independent witnesses who must be present at the same time.
Historically, ‘presence’ has meant physical presence. There have been many cases which have considered what ‘physical presence’ actually means. In Shires v Glasson (1687) a Will attested by witnesses in a second room, visible through a broken window through which the testator could have seen the witnesses if he had chosen to look, was held to be validly executed. This Will was deemed to be validly executed because both witnesses could see the testator signing his Will, and could therefore witness to that effect.
In Brown v Skirrow (1902)
the testatrix signed her Will in a busy shop. One witness, the grocer’s assistant, saw her sign and attested the Will, but the other witness, the grocer himself, was at the other side of the shop having a discussion with a salesman at the time the testatrix was signing the Will. There were customers in the shop between the grocer and the testatrix when she was signing her Will. The grocer then signed the Will. The Court held that “presence” must mean “visual presence”. In this case the Will had not been properly attested, as the signature did not take place in the presence of both witnesses.
As of September 2020, the UK Government introduced temporary legislation to allow people to use a video link to witness a Will being executed, in the event that physical presence of that witness is not feasible. Thus, for a temporary period, the term ‘presence’ has been extended to include either physical presence or virtual presence. In either event, the witness must be visually present.
This legislation will have a retrospective effect and will apply to Wills made on or after 31st January 2020. It will not apply where probate of the Will has already been granted in the estate of a deceased person, nor where an application for Grant of Probate has been submitted and is being processed at the Probate Registry. It is anticipated that the legislation will remain in force until 31st January 2022.
Virtual presence will mean that witnesses to a Will may be present via video technology, such as Zoom or FaceTime. The quality of the video must be such that the witness can clearly hear and see exactly what is going on. It is crucial that the other rules contained within the Act continue to apply.
These rules include;-
- Both witnesses must see the Testator sign the Will at the same time, and vice-versa;
- The Will must be circulated to the witnesses as soon as possible so that it may be physically signed by them;
- When the Will reaches the witnesses for signature, they must then allow the Testator to observe them signing their names on the Will remotely in the same fashion;
- The witnessing must be live;
- A Will only becomes formally valid once the Will maker and witnesses have signed it as described and in line with the other Wills Act 1837 requirements.
As the legislation is in its infancy, there is no case law on the method of witnessing Wills via video link, and it presents greatly increased risks of challenge, opportunity for abuse and doubt as to whether the procedure has been followed correctly.
The case of Shires v Glasson mentioned above emphasised that the policy objective behind Will formalities is the prevention of fraud. There is a strong argument that a cautious approach is required to testamentary formalities given that the document only takes effect when its maker is no longer able to give their own account. Unfortunately, under the new method of virtual witnessing coercion and undue influence, and confidentiality may all be an issue. The Will must be sent to each witness who may take the opportunity to read it. Therefore, it becomes essential that witnesses are carefully selected, and where possible it is recommended that the practitioner who drafted the Will should be asked to act as a witness, and provide the other remote witness.
What can we do to help?
You should always seek advice from a solicitor to ensure your Will is executed properly. If you would like to discuss anything in this article, or you would like further information or advice about making or executing a Will, our Wills team is always on hand to help. Please do contact us on 01228 552222 or make an enquiry through our website.