Remote Witnessing During Lockdown: A Step towards a Technological SolutionAll legal advisors
The Ministry of Justice (MoJ) has announced that legislation will be released amending the Wills Act 1837. This will clarify that the requirement of the line of sight between a testator and the witness can be satisfied by a video link rather than physical presence. This legislation is to have retrospective application to the start of the epidemic in January, potentially validating those Wills already created during lockdown via video link as an “art of the possible” attempt to make a Will in urgent situations where physical witnessing was difficult or impossible. It is to be imagined that those very few law firms who advised clients to make remotely witnessed Wills will be breathing a cautious sigh of relief and thanking their in-house clairvoyants. However, it will not be until September when the legislation is actually released that they can be fully assured that the amendments will capture the type of video witnessing already used – it is understood that this will be prescriptive.
The formal strictures of the Wills Act were designed to protect the vulnerable by having two independent witnesses in the physical presence of a testator to ensure there was no undue influence. However, technology has advanced beyond belief in the almost 200 intervening years – providing modern solutions to social distancing restrictions, and many safeguards for the vulnerable, such as recording any video-linked signatures. Since 2017, the Law Commission has undertaken a consultation on modernising the law relating to the execution of Wills, however it had just been ‘trundling along’ according to Ian Bond, Chair of The Law Society’s Wills and Equity Committee.
We have strongly advocated for updating the law relating to witnessing Wills during the COVID-19 pandemic because government-mandated social distancing creates situations in which it can be impossible for people to sign and witness Wills while complying with both the COVID regulations and the physical witnessing requirements of the Wills Act. Before Saturday’s announcement, we lobbied MPs and professional representatives to voice our concern about the significant hardships that the current signature and witnessing requirements for Wills could cause during COVID-19. We encouraged our clients to do the same, and we have also been supporting Gina Miller and Baroness Kennedy in their campaign for the relaxation of rules around the execution of Wills during COVID-19 - https://arken.legal/insights/covid-19-reinforces-the-urgent-need-for-digital-signatures. We are delighted that the government has elected for a technological solution to issues created by the Victorian legislation, and hope that this is just the beginning of a comprehensive overhaul of an outmoded system which should embrace and exploit all of the protections and efficiencies that technology can offer. A huge congratulations to everyone involved, this really is a positive step forwards for the Estate Planning industry, demonstrating that technology is and should be an answer to many of the dilemmas facing a modern Wills practice.
It is inevitably going to be difficult to balance all competing requirements for a new piece of legislation, particularly one created under urgency, and properly there must be checks and balances to ensure an adequate protection against undue influence. However, as a response to the COVID crisis, we would have hoped to see the response go further. Perhaps, in time, a more comprehensive solution can be adopted. Our view is that the New Zealand approach offered the ultimate solution to the difficulties faced by people who are unable to be physically proximate with others. The New Zealand legislation is comprised of a dispensing power, and (for the duration of the pandemic) the possibility of remote signature and remote witnessing of Wills in counterparts. What the MoJ seems to have announced is a much more conservative half-way house. The announcement specifically discounts the witnessing of Wills in counterparts, and we would query how many Wills that have been witnessed by video link during the pandemic will actually be valid under these new rules if they have been witnessed as separate physical documents.
Perhaps the strongest argument for remote witnessing is where you have a person in isolation in hospital, unable to receive visitors because of the risk of infection, and therefore unable to send and receive documents. How then will they send out the physical document from hospital to be physically signed by two separate witnesses? It appears that it will not be possible to direct someone by video link to sign on their behalf. Would the Will be valid if the testator died after having signed their Will (in view of their witnesses by video link) but before the witnesses had signed? We completely agree with the urging of the MoJ that a traditional in-person signature is to be used wherever possible until such time that a permanent approach to Will witnessing has been appropriately debated and resolved. But it may be that the very scenario where a physically witnessed signature is rendered absolutely impossible by dint of hospitalisation that the law change is unable to provide for because of the rejection of counterpart execution. And there appears to be no New Zealand-style dispensing power safety net to enable the Courts to overlook any failures in form where testamentary intent is nonetheless clear. Being able to direct the testator’s signature remotely would largely ameliorate those difficulties, one can only hope that this is an inclusion in subsequent legislation once the industry has come to accept the reality of a technological solution. So, the new rules will make it easier to execute a Will in scenarios where it would otherwise be very difficult or risky, but potentially may not assist the testator in complete isolation.
The government has set out detailed and helpful guidance as to what steps should be taken when remote video witnessing a Will: https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing. The rider given with this advice, however, is that the remote witnessing of Wills should be a last resort, only when a physically present witness is not possible. Given it has, in the large part, been possible, if highly inconvenient, to witness Wills through windows and across fences, it may be that the scenarios in which the new legislation is required will be limited. And it is arguable that – in the absence of the ability to sign in counterparts or a dispensing power – the situations where it is actually impossible to comply with s.9, will remain impossible under the new rules where a physical document is required to be in circulation. There is always a balance to be struck between the risk of undue influence on testators and ensuring that testamentary intent can be effectively recorded, and the sooner that a comprehensive review of this area is completed to take into account the protective technologies that are available, the better.
There are very many reasons to hope that we are not faced with a second wave, not least because enforced social isolation makes testamentary planning for those in extremis very difficult, and, in the case of hospitalised patients at the height of the pandemic, it was impossible. It is pleasing that a pragmatic response has been taken in relation to the need for video witnessing, and an indication that technological solutions are beginning to enter into government thinking. This should just be the start of the debate.