Private Client solicitors have widely reported a significant increase in Will-making enquiries during the Covid-19 pandemic. However lockdown measures presented a number of challenges, particularly with regard to the valid execution of Wills.
For a Will or Codicil to be valid, the signing formalities must be carefully adhered to as set out in Section 9 of the Wills Act 1837 which states:
The Will must be in writing, and signed by the person making the Will (known as the ‘testator’), or by some other person in his presence and by his direction.
The testator intended by his signature to give effect to the Will.
The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time (underline added for emphasis)
Each witness either:
attests and signs the Will; or
acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witnesses)
Accordingly in order for a Will to be validly executed, the testator’s signature must be made or acknowledged in front of at least two witnesses who must be ‘present’. The case law on what amounts to being ‘present’ makes for some interesting reading – for example witnessing through an open window of a horse drawn carriage (Casson v Dade (1781)) and on a driveway (with the Will being signed on a car bonnet!) (Wilson v Lassman  EWHC 85 (Ch))were deemed perfectly acceptable by the Court. The emphasis appeared to be on the witness being both physically and mentally present. In Brown v Skirrow  P. 3 the Court held that ‘presence’ meant “actual visual presence” stating "You cannot be a witness to an act that you are unconscious of; otherwise the thing might be done in a ball-room 100 feet long and with a number of people in the intervening space.”
The requirement for the physical presence of two witnesses was therefore particularly problematic in light of the social distancing rules and for people who were self-isolating. As a result, the Government have amended the legislation under the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 to permit the remote witnessing of Wills through virtual methods such as video conferencing. This came into effect from 25 September 2020 and applies retrospectively for Wills made since 31 January 2020 except for cases where a Grant of Probate has already been issued or an application for a Grant of Probate is already in progress. Whilst this is a temporary amendment, it is proposed that the new rules shall remain in place until at least 31 January 2022.
Whilst this is a major step forward in bringing the old legislation up to date, albeit temporarily, there are a number of potential risks and pitfalls to consider:
The “line of sight” requirement remains and the signatures should be actually observed i.e. seeing the head and shoulders of a person will not suffice.
The witnesses and testator should be able to clearly see each other.
The type of video conference is not important but a reliable interest connection is.
There is a risk that remote witnessing may give rise to cases of undue influence, due to the inability for the witnesses to see other individuals who may be physically present with the testator. It is therefore suggested that the testator is asked to show the camera around the room.
The signing should be ‘live’; witnessing a pre-recorded video is not permitted.
Electronic signatures are also not permitted.
The Will-signing should be recorded.
The Will should remain as one document. Accordingly the signatures or initials of the testator and witnesses should be made on each pages of the Will, so as to confirm that the Will is a complete document. After the testator has signed the Will in the virtual presence of the witnesses, then the original copy will need to be sent to the witnesses for their signature. However this gives rise to a risk of the Will being lost or damaged, or the testator dying before the Will is signed by the witnesses. It is therefore recommended that the Will is sent to the witnesses as soon as possible and by secure delivery.
The attestation clause should reflect that the Will was witnessed remotely.
Any solicitor overseeing the process should prepare a full attendance note.
The testator should re-sign the Will in the traditional way as soon as practically possible.
Testators and practitioners should exercise extreme caution if this method is used. There are clearly greater risks of undue influence, capacity issues and lack of due execution challenges.
Although traditional methods of Will execution and witnessing may be challenging in the current climate, it remains preferable to explore these options before proceeding with remote witnessing. Alternative traditional methods which adhere to social distancing requirements may include witnessing with a ‘clear line of sight’ through the window or an open door, or witnessing the Will outside in an open space.