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23 Sep 2020

Remote witnessing of Wills—pros and cons from a disputes’ perspective

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Private Client analysis: Mark Lindley, partner at Boodle Hatfield, discusses the new rules in the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, SI 2020/952 (the Order), which have been developed as a response to the coronavirus (COVID-19) pandemic.

What are the new rules and when do they apply?

The new rules are found in a short statutory instrument with a long title; Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, SI 2020/952, which was laid before Parliament on 7 September 2020.

The main substantive provision introduces a new subsection 9(2) to the existing Wills Act 1837 (WA 1837) to expressly permit the remote witnessing of Wills using video-conferencing technology by stating that ‘presence’ includes presence by means of video conference or other visual transmission.

What problems do you foresee with assessing capacity and consequent disputes?

WA 1837, whether as amended or otherwise, does not require a witness to be satisfied that the testator has capacity to sign a Will; indeed, a witness does not technically need to know that the document is a Will or know or understand its contents.

Nevertheless, in cases where a testator’s capacity is later called into question, the witnesses to the Will in question will likely find themselves called as key witnesses of fact in any litigation that may ensue. In those circumstances, their recollections as to the testator’s state of mind, appearance, comments made at the time the Will was signed, etc, can often be highly influential on the outcome of a claim.

The removal of the need for the witnesses and testator to be in the physical presence of the other, will likely limit the ability of the witnesses to form an impression on many of these factors.

What issues could there be with undue influence and fraud/forgery?

As noted, the formal role of the witness is limited to witnessing the testator apply their signature to the document. It is also true, however, that in practice the requirement for witnesses to see the testator sign can operate as a safeguard against undue influence or at least enable interested parties to identify it later. For example, a witness can confirm if a third party was present at the time of signing and if they seemed to put pressure on the testator to sign the document.

If the witnesses’ line of sight is limited to only what they can see with the camera, then one can see this might present an opportunity to a third party exerting undue influence to be present and yet keep their presence or actions ‘out of sight’ as far as the witnesses are concerned. A witness would be unable to confirm whether anyone else was present at the signing.

In theory, there may also be increased opportunities for fraud or forgery. The process of signing by video-link involves the Will being sent to the witnesses to sign just as soon as possible after they have witnessed the signature of the testator. Even if the witnesses see the testator sign, it is unlikely they will see the signature itself clearly (depending on the quality of the image or how close the camera is to the event). One can certainly imagine the Will actually signed being substituted with another document before it reaches the witnesses. This substitution would be almost impossible to achieve in the physical presence of witnesses.

What happens if the testator dies before the witnesses have signed the document? Are there any dispensing powers in this jurisdiction whereby the court could still uphold the Will?

It is useful to refer to the guidance provided by the Ministry of Justice as to how the execution process should take place.

This guidance states:

‘A will is fully validated only when testators (or someone at their direction) and both witnesses have signed it and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the will-maker dies before the full process has taken place the partly completed will is not legally effective.’

It is therefore clearly a risk that the testator could die before the witnesses have signed. There is no general ‘saving’ provision for Wills under existing law in England and Wales (although the possibility of introducing one has been discussed in the context of a more general reform of the law of Wills) and no such provision is introduced by the Order. The government also decided against allowing a Will to be signed in counterparts to deal with the issues that might arise from the need to ferry the document between the parties.

In cases where there is a risk of the testator dying (the so-called ‘death bed’ Will) then, if possible, the orthodox approach of witnesses in the testator’s physical presence should be used.

Are there any other problems that you foresee could lead to more disputes?

Other than the array of potential challenges to Wills already mentioned, there are many examples of Wills which have been ineffective by reason of failures to comply with the formality requirements of the WA 1837.

The effect of the Order is to introduce, on the one hand, the convenience of witnessing by video-link, but on the other hand a more convoluted, multi-stage process with perhaps greater room for error. We are all now far more experienced than we might have expected to be with the benefits but also the difficulties with video-conferencing technology. What if the video on the witnesses’ screen freezes just as the testator is about to sign and ‘unfreezes’ after the act of signing is finished? This is not an issue if the witness requests the testator to acknowledge the signature again, but not all witnesses may realise there is an issue.

The Ministry of Justice guidance referred to above suggests that:

‘If possible, the whole video-signing and witnessing process should be recorded and the recording retained. This may assist a court in the event of a will being challenged – both in terms of whether the will was made in a legally valid way, but also to try and detect any indications of undue influence, fraud or lack of capacity.’

Making a recording certainly seems sensible, but it will also potentially expose issues in the signing process that would not otherwise have been obvious on the face of a document which appears validly executed. One can expect it to become common practice to demand and scrutinise a copy of such recordings as part of any dispute process.

Do you think this process could avoid disputes in some cases?

If the process permitted by the Order enables testators to make a valid Will, in circumstances where either the guidance or restrictions relating to coronavirus (or indeed any other reasons why a testator may find it difficult to arrange to sign in the physical presence of witnesses) would have made that difficult or impossible, then it may avoid disputes that could arise (under, say, the Inheritance (Provision for Family and Dependants) Act 1975), where the deceased has made no Will.

Generally speaking, however, it seems unlikely that disputes which tend to arise due to suspicious circumstances, disappointed expectations or failures to make reasonable financial provision will be any less likely to occur. The effect of the Order in such circumstances is more likely to be that any Will executed using the permitted procedures will be subject to additional scrutiny to ensure that they are formally valid.

Do you think these coronavirus initiated changes are here to stay?

As mentioned, at present the Order has an in-built temporal limitation of 31 January 2022. It is certainly possible, however, that if the changes prove workable that they may lead to longer term amendments to the formality requirements set out in WA 1837.

It would likely be preferable, however, if any more permanent changes are dealt with by primary legislation subject to the additional scrutiny that entails, rather than by Statutory Instrument, made under powers conferred by sections 8 and 9 of the Electronic Communications Act 2000, in extraordinary circumstances.

This article was first published on Lexis®PSL on 23 Sptember 2020 and can be found here (subscription required).