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28th September 2020

Video Wills: Solving one problem but creating more

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One of the many things made difficult by the coronavirus pandemic is the proper execution of Wills, particularly during lockdown. In response, the Government has moved to legalise the video-witnessing of Wills.

Whilst this could seem like a welcome modernisation of the law, it creates a great deal of uncertainty and several significant pitfalls.

What is normally required

The formalities governing the execution of Wills are set out in s.9 of the Wills Act 1837 (‘the Wills Act’). In broad terms, a valid Will must be in writing, and s.9 requires that:

  1. the testator (the person making the Will) signs the Will or acknowledges their signature in the presence of two witnesses; and
  2. those witnesses each sign the Will or acknowledge their signature in the presence of the testator.

The key word is “presence”. The courts have held this requires that the testator and witnesses need to be in the physical presence of one another. In normal times, solicitors would organise a Will signing meeting where the testator and two witnesses would all be physically present and the solicitor could oversee proceedings.

The Wills Act has been well tested over the years. The courts have been clear that the most important requirement for Wills is certainty. There must be certainty that the testator intended to make the Will, certainty that the particular document was intended to be signed and certainty that the particular document was actually signed (and witnessed) correctly.

What has happened

The Gazette reported that the number of people making or changing their Will rose by as much as 75% earlier this year. This is undoubtedly another side effect of the Coronavirus pandemic, as we have sadly all been forced to consider our mortality. Unfortunately, many law firms have found that they lack the IT infrastructure to work remotely with success and therefore have struggled to meet the demands of their clients. It appears that in response to a shortage of available solicitors, some people resorted to writing and executing their own Wills or made use of other, non-solicitor, businesses (which offer this service, but don’t have the same legal duty of care to get it right).

Getting Wills witnessed during the last six months has caused a great deal of difficulty for many individuals. It was understandably difficult for people to make arrangements against a backdrop of ever-changing guidance from the government. There are many instances of solicitors witnessing Wills through windows, or of Wills being signed in cars, to maintain the rules on social distancing, but still keep the Will validly witnessed.

Those who wrote their own Wills are likely not to have been aware, amongst other things that:

  1. The witnesses could usually not be family members of the testator;
  2. Any gifts in the Will to a witness (or the spouse of a witness) automatically fail;
  3. The witnesses needed to physically see the testator sign and the testator had to physically see them sign i.e. physical presence.

In a time when contact with others has been so limited, it is likely that testators will have asked their close family or friends to act as witnesses. Sadly, this is likely to mean that some Wills or some of the gifts within the Wills signed during this period will be deemed invalid, leaving the testator’s wishes unfulfilled.

In addition, some advisors thought they could act as witness by video. This clearly breached the “physical presence” rule and was incorrect – meaning that all such Wills were invalid. For some testators it is too late to remedy those mistakes. People have died, and had their estate administered on the basis of old Wills, or the state’s intestacy rules, not their wishes as expressed by their invalid video Will. Their family’s only remedy is to try to sue the advisor – easily done if that advisor was a solicitor (hopefully not!), but very difficult if it was a “lawyer” or “legal advisor” (generic terms which do not give the client the protection offered by the solicitors’ regulatory body).

For those who made invalid Video Wills but have not died, the government has stepped in to help, as below. However, this help can backfire on clients who made video Wills, as we will explain, and so we recommend that they review them.

How has the law changed?

The Government has passed a new statutory instrument (The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020). This temporarily amends the Wills Act. The instrument provides that

“in relation to wills made on or after 31 January 2020 and on or before 31 January 2022, “presence” includes presence by means of video-conference or other visual transmission”

This may make some Wills signed since 31 January 2020 (the date of the first recorded coronavirus case in the UK) retrospectively valid, but there are important limitations.

The temporary change to the law allows Wills to be made using video-conferencing until 31 January 2022. There is power to extend or shorten this period and the Government has indicated that it will be guided by how the pandemic progresses.

In addition, the Government has published guidance on making Wills using video-conferencing. The guidance is significantly more detailed than the actual statutory instrument and sets out a four-stage process that should be followed. The guidance suggests a number of steps that may not have occurred to testators, including:

  1. Recording the video-conference .
  2. Witnesses seeing the testator’s pen on the Will, not just their head and shoulders hunched over it.
  3. Pages of the Will should be held up to the camera (so witnesses see them clearly).
  4. The two witnesses need to be present on the same video-conference.
  5. A second video-conference is needed so the Testator can see their witnesses sign the Will (and a third video-conference may be needed if the witnesses cannot be together to sign).
  6. The statutory instrument does not validate counterpart Wills (separate signatures on separate documents) or electronic signatures.

Does the change work?

There were months of speculation about this change beforehand. and we reported on this on 10 July 2020 and 27 July 2020. In those articles we highlighted a number of issues that remain pertinent .

The statutory instrument is strikingly brief and, if anything, creates even more uncertainty. No mention of the government’s guidance is made and certainly none of the requirements set out in the guidance feature within the instrument. It is far from clear what, if any, weight the courts will place on the guidance and we can only assume that it must be followed.

If indeed the guidance must be followed for a Video Will to be valid, the retrospective aspect of the change is unlikely to be of any use. A Testator, could not have foreseen that the video-call should be recorded, or that they should hold individual pages of the Will up to the camera for the witnesses to see (and possibly read!).

As electronic signatures become ever more commonplace, people may have turned to this as a practical way of overcoming the lockdown restrictions. The same is likely true for counterpart Wills. Neither of these solutions have been validated by the new legislation and it remains to be seen how great an impact this has.

In addition to the inevitable technical issues so common to video-conferencing, relying on a video Will signing process heightens the risk of the Will being challenged after death. Potential grounds for a challenge include that it was improperly executed, entered into under undue influence (perhaps by a nefarious relative lurking behind the camera) or altered after the testator had signed it. Just like the courts, certainty should be at the forefront of a testator’s mind when making a Will, and this is why we recommend that relying on video-conferencing should be an absolute last resort.

For those Testators who signed video Wills, not having been warned at the time they were invalid, another question must be faced. If your advisor did not know that Video Wills were invalid (and initially the government was adamant they would not try to save such Wills) – then what other errors in validity, or in tax effect, might that advisor have made?

We have an experienced team that can help you with the preparation and execution of your Will. Our solicitors are highly trained and well placed to advise on all the issues raised in this article. If you need any advice in relation to your Will, please contact one of the team below:

  • Hauke Harrack on 01604 463131 or click here to email Hauke; or
  • Chloe Harbutt on 01223 532714 or click here to email Chloe.

If you need advice on making or defending a claim in relation to an invalid Will then please contact our expert Tiffany Benson on 01604 463340 or click here to email Tiffany.