On 25th July 2020, news was released that remote witnessing of wills is to become permissible. The idea here is to reduce the number of contentious probate cases that could arise as a result of remote witnessing. This will be the case for the next 2 years as a response to the COVID-19 pandemic.
Under the Wills Act 1837, for a will to be valid, it must be signed by the testator (the person making the will) and 2 "witnesses".
What is a witness?
A witness, as the name suggests, witnesses the testator signing the will to signify that they are happy with it. A will isn't valid unless it is signed by the testator and 2 witnesses in the presence of the testator. The testator signs and dates the will. Witnesses sign, date, and also provide their address and occupation.
eg,
John Smith
12 Random House Lane, London SW1 2PJ
Carpenter
Who can be a witness?
Witnesses must be independent adults. They can't be related to the testator, beneficiaries of the will, or the spouse/partner of a beneficiary. So this will mean having to seek out the signatures of someone else - it could be a colleague, friend, neighbour, lawyer, GP, dentist, postal delivery worker, supermarket worker, you name it. These witnesses must be independent and have no stake in the will so as to ensure impartiality. An executor/personal representative (PR) can be a witness, so long as they are not also a beneficiary.
If a beneficiary witnesses the will, they forfeit their right to a share of the estate. The status of witness trumps the status of beneficiary.
Basically, ask yourself this: is the person I'm asking to be a witness related to me and/or going to receive anything I am declaring in my will? If yes, they can't be a witness. If no, then they can.
Why do you need witnesses?
Witnesses confirm that the testator is actually who they say they are and are signing the will of their own free will and aren't being forced to do so. They also confirm that the signature of the testator is correct and that the testator is mentally capable of understanding what they are doing and have the capacity to sign.
What's the process?
Assuming that everything is in order, everyone signs and dates the will. Witnesses also include their address and occupation. This is so that if there are any challenges to the validity of the will, they can be called upon.
Can witnesses refuse to witness a will?
Yes. If a witness is uncomfortable in the circumstances of signing a will, they can refuse.
Some reasons might be (non-exhaustive):
the person signing isn't the testator
the witness believes the testator doesn't have sufficient mental capacity to sign the will
the witness believes the testator is being coerced into signing the will
the witness knows that they are a beneficiary of the will, or the spouse/partner of a beneficiary
With the current situation we find ourselves in and the advice to keep 2m distance between persons not sharing a household so as to reduce the spread of the virus, it makes the usual way of witnessing a will very difficult.
There have been inventive ways for wills to be witnessed though. For instance, neighbours witnessing wills over garden fences, or documents being passed between cars parked two metres apart.
But on the whole, remote witnessing should make witnessing wills and validifying them much easier and accepted.
So this is good news, right?
On the face of it, yes. I'd welcome it from my point of view, given that I don't want to be within 2m of anyone outside my household due to living with people who are at-risk. If I was in the position of a testator and I needed my will signed, I'd have to think of an inventive way of getting it done that meant we didn't have to be near each other but I could still see them put pen to paper.
Also helpful that these temporary changes are to be effective from January 2020, reportedly when the virus entered the UK, which would give reassurance to many people who might have been worried that their will might not have been witnessed properly. These people may very well have been shielding or living with people who are shielding and so were staying at home throughout the pandemic.
It is also a good way to make use of modern technology and applications that have now become a part of our day to day life, such as Zoom, WhatsApp, FaceTime etc. If 2008 is anything to go by, tech companies will be seen as new leaders in innovation bringing about lasting habitual changes in the way we live our lives. The 2008 financial crisis saw the rise of the smartphone to the point now where they are an integral part of our lives. Previously, phones would just make calls, text messages, some would even take photos, and devices such as BlackBerries (yeah, I'm old!) would even have free user-to-user instant messages between BlackBerry devices - essentially the precursor to WhatsApp!
Also worth considering is that the legislation that we currently have, the Wills Act, is dated 1837. That's 183 years old! It seems like it is time for the Act to be reviewed and potentially reformed, especially since life now is significantly different in comparison to life in 1837.
However, here are some other things that should be considered....
This is only for 2 years. If it were to become permanent, primary legislation (ie an Act of Parliament) will be needed to enact this. This takes time as it requires the drafting of a Bill, multiple readings before it is agreed by Parliament, and then Royal Assent (The Queen signs it). It is a long and onerous process, hence why this move is only temporary so as to bring it into effect quickly. It is also assuming that the pandemic will have cleared up by 2022. So far we don't know if it will or won't; we'll have to see. On the one hand, it is nice to see optimism here. But on the other hand, look at what we have in 2020 that is making our lives as they are. Modern technology, smartphones, video meeting applications (we're in what's being called the "Zoom Boom"). Why shouldn't we take these into account for instances such as witnessing wills? Tech like this is already considered in modern public order offences, ie posting or resharing messages, posts and photos on message boards or social media that incite hatred (based on race, religion, sexual orientation, gender identity, and all other protected characteristics).
See an article posted on Today's Wills and Probate on 28th July 2020: https://www.todayswillsandprobate.co.uk/main-news/industry-reacts-to-moj-announcement/
Validity
Amanda Noyce, Partner in the Contested Wills, Trusts and Inheritance Disputes team at Royds Withy King, commented on the validity of a will witnessed via a WhatsApp video call:
"We had to warn the client that this was the best that could be done in the circumstances and that the will might well be formally invalid: a test case would be required to determine whether the will was in fact valid. In our view it was arguable that the will did satisfy the requirements of the Wills Act, since the will was signed and witnessed in the line of sight of the client – albeit that the line of sight was via video."
This is in the context of instruction from a very ill client for a solicitor to witness the will being signed, and for the solicitor's wife to do the same. You'll see that there was concern that, because the will wasn't done in the physical presence of witnesses, as it has always been done pre-pandemic, the will wouldn't be valid, despite it satisfying the requirements of the Wills Act. I would speculate that, if the validity was challenged by a Judge, the witnesses would be answering that they saw the testator sign it over a video link, which likely wouldn't satisfy the Judge.
Happily, the client recovered and was able to re-execute the will, thereby avoiding any potential pitfalls in the validity. But with the introduction of this new law should offer reassurance to anyone who executed their wills and had them witnessed pre-lockdown. With this client above, it would have saved them time and possibly money on re-executing.
Safety
Linda Ford, CEO of CILEx, raised the need for this law to be implemented with the safety and wellbeing of testators in mind.
"...these changes need to recognise the risks of duress, undue influence and fraud, and build safeguards into any such new regime. Unfortunately, wills can bring out the worst in people and the retrospective nature of the change, whilst providing additional assurances for those who have already made their wills over the lockdown period, could make some cases particularly fraught"
This is particularly poignant here, that wills can bring out the worst in people. Whenever money and valuable assets are involved, it's not uncommon for there to be tensions and conflicts, unfortunately. The retrospective nature of the change should bring reassurance to anyone who got a will written and executed during lockdown, and in fact since the start of the year, but even a will executed virtually can still be cause for contention. Modern technology is great but is still subject to pitfalls, such as unstable connections and videos and audio dropping out, thereby raising an argument of "the wifi went down, it wasn't witnessed, it's not valid" or something along those lines. It is 2020, and we must innovate, but it must be done safely and with the best interests of the testators in mind here.
Probate professionals and the public will need the utmost clarity on where and when remote witnessing is appropriate and have a duty to ensure that the process is made as smooth as possible so as to avoid adding any further stress to the client.
Last resort?
Jade Gani, Head of Wills and Probate at Aston Bond, whilst agreeing that this change could be life-saving for particularly vulnerable clients by removing the risks associated with being physically present for witnessing a will, suggests that video-witnessing should be a last resort rather than standard practice.
"I do believe that this is something which should only be used after all of the other options have been exhausted because, again, no matter the lengths you go to in order to ensure there is no undue influence, there simply isn’t a way to be completely certain there isn’t anyone else hiding behind the screen. So it is a fine balancing act and one which the professional must weigh with the Testator’s thoughts and individual circumstances"
She explores further on LinkedIn advice for best practice (https://www.linkedin.com/posts/jadegani_industry-reacts-to-moj-announcement-activity-6693841847875330048-GhQz), including:
recording meetings held on video (with the client's permission),
stressing the importance of sending the executed will back ASAP via special delivery (definitely helpful here as there is a tracking number that is associated with the delivery) or hand delivered by a trusted person (thereby effecting immediate service),
not delaying with a 2nd video link so the testator can see the witness sign too (even having them on the same call would be helpful, so long as the client consents to this),
using 2 professional witnesses (especially if they are regulated professional),
ensuring the attestation clause is properly adjusted (the attestation clause is a clause that explains the circumstances in which the will was signed and witnessed, which typically states that it would be in person, but here would need to be adjusted to state it was signed and witnessed over video-link software), and
when sending signing instructions, include example wording they can use at the start to indicate they intend to sign their will
She also doesn't shy away from the likelihood that there will be more litigation around this, which may impact whether this change in law becomes permanent after January 2022. Contentious probate cases here could very well be plentiful. A couple of reasons for contesting a will could be:
claims of coercion or duress as you can't see if there is anyone on the other side of the computer screen, or
claims that the will wasn't properly witnessed due to wifi or other technical problems
Kerry Wigg, a consultant solicitor, says:
“STEP has issued a briefing note on 25.07.20 and Guidance on this issue and my understanding is remote witnessing is not intended to be a substitute to the conventional method of witnessing Wills and should only be used in an emergency when conventional witnessing is impossible and extreme caution is required when taking this course of action. Given the scope for abuse of using video witnessing, personally I think this approach is sensible.”
STEP, the Society of Trusts and Estate Practitioners, is considered to be the gold standard mark of excellence in the Private Client realm. You see a mark bearing the STEP name, it means practitioners in Private Client law at this firm are amongst the most competent and capable practitioners and are able to provide the best possible quality advice.
The overwhelming opinion on this change in the law so far is that it is to be used as a last resort where it is impossible to sign and witness a will through established conventional means. Though especially if clients are vulnerable, elderly, or shielding due to other health conditions, physically executing and witnessing wills is a risk to everyone involved. In instances such as that, there might be no other option but to witness remotely so as to not risk the client's health.
Though consider the options that might be available:
are there neighbours who can verify the client is who they say they are? If so, how about placing a table in the driveway, the neighbour watches as the testator signs their will, the testator takes a few steps back, allowing the neighbour to view the signature and date, and then signs himself.
if there are no neighbours, what about anyone else in the social circle? Colleagues, friends, people they have met from other social groups, fellow churchgoers, postal workers who drop off the post every morning? Have them take the place of the neighbour instead.
I personally think that utilising all tools at our disposal to our advantage to provide the best service possible to our clients should be on every practitioner's mind in 2020, a year that has raised a number of challenges and disruptions to the norm and has forced us to look at our current and emerging technologies to help us continue with our day to day work and lives.
But I agree that extra care needs to be taken when relying on technology to help us here. Technology is only as good as the weakest wifi connection! Nevertheless, it shows real innovation in the profession and the public to embrace new technology such as this to allow us to continue our lives.
Though I do feel that there is no substitute for physically being present during a signing so that there is no doubt of the intentions of the testator and the validity of the will. But until it is safe to be physically present here, we'll have to continue innovating and using technology work with us here. We've been given a gift in the tech boom here; it is up to us to use it properly and for the best interests of our clients.
It would be good to hear further thoughts on this piece of news.
Be safe and be well! :)
P
Credit: cover image photo by Dan Nelson on Unsplash
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