Witnessing Wills During a Pandemic: “You’re on mute”

Thu, 21 Jan 2021

The Wills Act 1837 (Electronic Communications) (Amendment)(Coronavirus) Order 2020 (SI 2020 No 952) means that it is now possible to witness a will via a video call. These temporary changes are much needed to allow those who want to make or update a will during the Covid-19 pandemic to do so safely and legally.

The changes to the witnessing requirements were heralded in an announcement by the Ministry of Justice (MOJ) on 25 July 2020. The announcement was accompanied by Guidance, which attempted to predict the way in which the changes would be put into place. The Guidance set out that any changes would be retrospective and apply to wills made after 31 January 2020 (which has come to pass) and as a result, many people will have tried to make anticipatory compliant wills between July and 28 September 2020, when the law reform came into effect.

What are the Changes?

The four requirements for what is required to validly execute a will are set out succinctly in s9 Wills Act 1987.  The new legislation amends s9 to make the existing text subsection 9(1) and add a subsection 9(2), which alters the definition of ‘presence’ in parts of what is now s9(1).

S9(2) expressly includes, in the definition of presence ‘video conferencing or other visual transmission’.

The changes only affect those who are witnessing wills and do not extend to cases in which someone signs a will for the testator themselves, at the direction of the testator. This is due to the obvious risks of possible abuse if the amendment were widened in this way.

The amendments made to the Wills Act by the Amendment Order are straightforward and therefore it is likely that anyone who tried to comply in anticipation will have successfully gained retrospective validity. The Guidance published by the MOJ in July remains in effect alongside the new legislation.

The changes, expressly, do not affect grants of probate made before 28 September 2020. This will prevent a current grant from being challenged on the basis of a later will that was witnessed using a video call. However, there is no such saving provision for grants of letters of administration. This means that a grant in an intestacy could be overturned on the basis of a will that was only validly executed pursuant to the Amendment Order. Clearly, this has the capacity to disrupt the administration of estates that is already underway. However, the justification seems to be the desire to avoid an intestacy situation where the testator's wishes have actually been made clear.

Key elements of the MOJ Guidance are:

  • The video of the testator signing the will or acknowledging their signature cannot be pre-recorded and must be in real-time.
  • It would be good practice to keep a recording of the video.

[This is an interesting point, as it means that a whole new category of potential future evidence is being collected for these wills. It will be interesting to see whether recorded execution of wills becomes a lasting effect of this period.]

  • The witness must actually see the signature, rather than a shot of head and shoulders with the signing or attestation taking place off-screen. It is therefore important to ensure that the camera shows this.
  • The testator/witness should identify themselves, those on the call and the purpose of the call (be careful not to be on mute!) and hold up the pages of the will to the camera, so that they can be seen and identified, before signing.
  • The witnesses must sign the same document as the testator, meaning that the will has to be passed to each witness after signature by the testator. The Guidance recommends that this happens within 24 hours of the testator signing, as the will is of course not valid until it has been signed by both witnesses.
  • There will need to be a second (and possibly third if the witnesses are not able to be in each other’s presence) video call, for the witness to sign in the presence of the testator and the other witness. Again, this would ideally be recorded. [More evidence for the lawyers.]
  • The Guidance suggests that it would be advisable to use a special attestation clause stating how the will was witnessed if the Amendment Order has been relied upon, and possibly stating if and where there is any recording of the call.

How long will it be in place for?

The Explanatory Note attached to the Amendment Order states that it the Amendment applies where a will is made between 31 January 2020 and 31 January 2022. Parliament will clearly be able to extend this or bring it to an early end, once the time is right for that. One can imagine a time when most people can go back to being in the physical presence of others, but that might still not be possible for everyone. We may therefore see some extensions, as has been the way with other emergency Covid-19 related legislation. 

Might there be any unintended consequences?

As ever, when legislation is reformed in a hurry, commentators will worry about potential unforeseen impacts. The first of these that has been raised, is that it was by no means certain that the existing s9, and the word ‘presence’ actually excluded someone being present via a video platform. This had never been tested in any case law. Parliament having now made this amendment and stated its temporary nature will, however, make it difficult for anyone to argue that it should be included within the normal reading of the words ‘present’ or ‘presence’. This could have an impact on legislation far wider than the Wills Act 1837.

The second potential issue is the apparent lacuna for cases in which there has been a grant in respect of a pre-January 2020 Will, but the grant is one of the letters of administration by virtue of the will not appointing an executor. In those cases, the grant could be overturned so as to pronounce for the validity of a later will executed in accordance with the Amendment Order, because it will not be a grant of probate, even though the intestacy saving ‘justification’ will not apply. This scenario, however, will only apply in cases in which the latest will was made after 31 January 2020, the testator has since died and there had already been a grant of probate by 28 September 2020. Given the delays in many regions in obtaining a grant during the pandemic, this is perhaps unlikely to affect a large number of estates.

Written by Louise Corfield

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