Wills In The 21st Century - The Significance Of Virtual Witnessing

Rachel Mainwaring-Taylor

24 August 2020

Even without COVID-19, the digital revolution has changed how people conduct business, and that includes legal activitiy. Writing, signing and authorising wills is one such area. For high net worth clients whose affairs involve cross-border transactions, the need to adopt video and other channels is clear. Obviously, the pandemic has massively accelerated this trend.

Clearly, there are drawbacks and issues to consider when using such communication channels. And it may be that some wills that have been drawn up online might turn out to be flawed. What sort of checks should people adopt to reduce problems? To try and answer such questions is Rachel Mainwaring-Taylor, a partner at UK law firm .

The editors are pleased to share these insights and invite readers to enter the conversation. The usual disclaimers apply for comments from outside contributors. Email tom.burroughes@wealthbriefing.com and jackie.bennion@clearviewpublishing.com

The recent UK government announcement that the law will be changed to allow wills to be witnessed virtually has been heralded as the most significant change in this area in almost 200 years. Since the Wills Act in 1837, containing what constitutes a valid English will, updates to legislation have be few and far between. The Wills Act 1963 ensured that wills validly made under foreign laws could be recognised in the UK, but did not change our own domestic rules. Following this, a Law Commission consultation on reforming the law on wills was undertaken in 2017, but has since stalled at the policy development stage while other projects have been prioritised.

Problems raised by lockdown
The current law requires a testator, or someone authorised by them, to sign their will in the presence of two independent witnesses, each of whom must then sign in the testator’s presence. Although the witnesses do not have to sign in each other’s presence, in practice they usually do.

Different formalities are needed for other types of legal documents: for example, most contracts require only the signature of a party, whilst most deeds require a single witness. The heightened formalities for wills reflect the significance of the document and the potential risks of fraud. It is clearly important to be able to verify that the will was indeed signed by the testator, they knew what they were doing, and they intended to give effect to the will by signing it.

During lockdown, social distancing rules have naturally led to problems, but the most difficult situations have arisen where a seriously ill individual wanted to make a will belatedly. With visits to hospitals and care homes prohibited and staff in many of these institutions not allowed to witness wills, it was difficult, if not impossible, to arrange valid execution.

That said, some creative thinking and consideration of individual circumstances has led to solutions in many cases, be they witnessing through windows of homes or cars, or outdoors in gardens or parks, all while observing social distancing rules and additional precautions such as masks, gloves and a different pen for each individual.

New beginnings
The recent changes will permit witnesses to be present virtually rather than physically when witnessing a will. These new rules will apply retrospectively to wills executed since 31 January 2020 for a fixed period of two years, and are a temporary measure intended specifically to address the challenges of making a valid will during the COVID-19 pandemic.

The announcement is welcome, particularly for those who have been shielding and can now continue to do so if they plan to sign a will. The few individuals who might have felt compelled to execute wills via a video link during the height of the pandemic will, no doubt, also be breathing a sigh of relief. With lockdown being lifted around the country, the peak of anxiety over will signing will have passed for many, but the change will offer a degree of flexibility as we all adjust to whatever the coming months may bring.

Virtual logistics
However, Government guidance makes clear that virtual witnessing should only be a last resort, and rightly so, since other requirements still apply to video witnessing, bringing with them a host of new logistical problems: the will must still be physically signed by the testator and both witnesses, as electronic signatures are not permitted; they must all be able to see each other sign, most likely requiring careful angling of cameras beyond the usual ‘head and shoulders’ view; and the requirements for presence are not altered, meaning both witnesses must be present when the testator signs and vice-versa.

Therefore, in order to execute a will virtually, up to three ‘signing meetings’ via video call may be needed, and someone will have to transport the will between the parties, greatly increasing the scope for error, not to mention the time it will take to complete the process.

As well as these practical issues, virtual witnessing could increase the potential for fraud or undue influence. Over video link, there is a greater danger of someone out of shot guiding or forcing the testator to sign, so practitioners will need to take additional measures to address this risk.

It has also been suggested that signing meetings should be recorded to provide evidence of due execution. However, such a measure will not address risks beyond formal validity and raises additional issues around the storage of recordings, who will be responsible for them, and how to ensure their authenticity.

An opportunity for further reform
While this change will help some people in the short term, this area of law is ultimately in need of broader modernisation. The two-year fixed period could allow for the Law Commission review to be completed in time for wider reaching changes to be implemented in January 2022, covering electronic signing (which is already possible through secure platforms for many legal documents), and dealing with the little-known archaic law whereby marriage automatically revokes a will. Let’s hope this opportunity is grasped.