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30th July 2020

Daniel Watson and Julia Richards examine Wills to be witnessed by video link in The Times

Daniel Watson and Julia Richards examine Wills to be witnessed by video link in The Times
Daniel Watson
Daniel Watson
Senior Associate

This article was originally published in The Times and can be accessed here

Witnessing Wills by video-link: Zooming into the future

The government has recently confirmed that Wills witnessed remotely by video link (e.g. Zoom, FaceTime, etc.) will be legally valid. This is a welcome, fundamental, and overdue development in the law.

Currently, except in a limited number of circumstances, two independent adults are required to be physically present with a testator (the person making a Will) when witnessing their signature; otherwise, a Will would fall foul of the requirements for valid execution under the Wills Act 1837. The consequence of such invalidity is that the Will in question would be of no legal effect. As a result, the testator’s estate would either pass under any previous Will; or, if no previous Will existed, the estate would pass to specified persons under the rules applicable where someone dies without a valid Will (the intestacy rules).

From September 2020, English law will be brought into line with many other jurisdictions, including Scotland, which had already adapted to allow video-witnessing of Wills during the pandemic. In England, witnessing by video-call will be permitted, provided that the quality of sound and video is good enough to see and hear clearly. The government has nevertheless said that video-witnessing should be a last resort, and that efforts must be made to use physically present witnesses where safe to do so.

The measures, which are retroactive from January 31st 2020 (the date of the first confirmed COVID-19 case in the UK), will give much needed, albeit dilatory, reassurance to those currently finding it difficult to comply with the Will-signing formalities (e.g. because of isolating or shielding). Those who, during the pandemic, have already used video technology in executing their Wills, and who may have been uncertain about the validity of their Wills, can also now take comfort.

There will of course be scope for challenging the validity of Wills witnessed by video-link; and the number of challenges against Wills generally has increased significantly during lockdown, reflecting a greater willingness on the part of disappointed beneficiaries to claim against estates. Nevertheless, provided that good evidential records are kept (e.g. a recording of the video-witnessing), there is no reason, in principle, why video-witnessed Wills should be any more difficult to uphold in the courts than Wills witnessed in the testator’s physical presence.

The new video-witnessing measures will remain in place until 31st January 2022 (or for longer if deemed necessary), after which Wills must return to being made with physically present witnesses. But it is at least arguable that the new measures should endure post-Coronavirus. The logic of maintaining a distinction between ‘physically’ present witnesses, and those present by video-link, seems questionable when the act undertaken is essentially the same.

One cautionary point is that a Will is only valid once testator and witnesses have physically signed the Will. Where a Will is posted to witnesses for signature (after the testator has signed and the witnesses have witnessed the signature by video-link), there is a risk that the testator could die before the witnesses have physically signed the Will. In such circumstances, the Will would be invalid. The process should therefore be completed as soon as possible after the testator signs (ideally within 24 hours), to mitigate this risk.

A corollary to allowing video-witnessing in Wills is whether the electronic execution of Wills more generally might become permissible. Could a testator / witness sign a Will electronically using a word processor, or other form of electronic signature, rather than handwritten signatures? This is a complex area, bringing with it questions of signature-authenticity, higher evidential burdens, technological wherewithal, and an increased risk of litigation. Electronic signatures on Wills could potentially compound opportunities for undue influence and fraud vis a vis the testator; it was for this reason that the government decided not to allow electronic signatures as part of the new legislation relating to video-witnessing.

That is not to say that such difficulties are insurmountable, particularly as technological infrastructure and cyber-security develop in this area. With political momentum, careful legislative oversight, and appropriate safeguards against fraud and undue influence, it is not fanciful to imagine that the law on making a Will could be brought into the 21st Century, so that a testator could make a Will entirely by electronic means in the future. The Law Commission’s 2017 consultation, ‘Making a Will‘, covers this very area, and their final report on this subject is awaited. In light of present circumstances, their recommendations cannot come soon enough.