Executing Wills by video-link is the Wills Act 1837 being brought in line with the 21st Century?
The Government has just announced that it will pass legislation in England and Wales in September this year, which will allow people to witness a Will remotely.
The Government has also announced that the legislation will apply to Wills that have been executed from 31 January 2020, and that the legislation will remain in force for 2 years following its adoption into law.
Although this has been heralded as a major advance, there are still a number of things which you need to bear in mind, the first ones being:
- the draft legislation has not been published, and so the actual content and requirements are not known;
- there is always a chance that the proposed legislation might not come into force; and
- it will not apply to Wills where Probate has already been granted, or to Wills which have been submitted to the Probate Registry who are in the process of issuing the Grant of Probate.
As such, as the Government has advised that relying on this – as yet not even in draft form – legislation is used as an absolute last resort.
Why was this deemed necessary?
Under current legislation (the Wills Act 1837), for a Will to be valid, it must be executed as follows:
- by or on behalf of the testator;
- in the presence of 2 independent witnesses (who must not be beneficiaries, or their spouse/civil partner, under the Will otherwise they will forfeit their entitlement); and
- the witnesses must then sign the Will, or acknowledge their own signature, in the presence of the testator.
Therefore since the onset of the COVID lockdown, and implementation of the 2 and now 1 metre social distancing guidance, it has been more difficult for people to execute their Wills once they are in the final, or execution, form.
We published an article which addressed the logistics surrounding the execution of Wills during the lockdown in April.
What are the problems we see with logistics of remote execution?
Under current legislation, the testator and the witnesses must sign the same document: a photocopy cannot be signed by the witnesses, and a Will (unlike deeds) cannot be signed as ‘counterparts’ (i.e. each party signing their own copy of the identical document, and then collating all the documents together afterwards).
Therefore, the questions are:
- from what date does the Will have effect; and
- from what date will it be valid?
It is anticipated that the Will shall be dated on the date that the testator signs it in front of the witnesses, however that the Will shall only be valid when the witnesses have signed it.
There is not guidance as to the next steps either, but we assume that the Will shall then have to be sent to each witness to sign.
In compliance with the Wills Act 1837, each witness will then have to sign the Will in the presence of the testator.
It is assumed that, owing to the different process, the witnesses will also need to be in the presence of one another.
As such, there may need to be a further 1 or 2 (where the witnesses are in different locations) video calls with the testator and the witnesses present on each one, following the testator signing the Will.
Therefore there is a danger that the Will will not be valid if either the testator or one of the witnesses dies, or becomes incapacitated, after the testator has signed the Will but the witnesses have not.
The legislation is clearly aimed at assisting those who are shielding, or otherwise isolated from others owing to the pandemic, or indeed those on their deathbed. However it does not appear to have gone far enough: the testator will still need to send the hardcopy to witnesses by courier (we would not recommend using any other means of sending it by post given the current delays). By the time that has been organised, and the witnesses have signed the Will too, the testator may have wasted precious time.
The best thing is still to arrange for witnesses to attend in person, unless that is simply impossible.
The number of Will disputes rose in 2019, and it is widely anticipated within the legal industry that there will be an increase in 2020; it is sadly anticipated that there will be a number of disputes in relation to Wills executed during the COVID lockdown.
The same considerations need to be made as to the more traditional, and most common, grounds for disputing Wills, which are that the testator:
- did not have sufficient mental capacity to enter into the Will; or
- made the Will because a third party was exerting pressure on them to do so (referred to as undue influence).
Again, this was addressed in our article in April.
In addition to these grounds of challenge, there will no doubt be challenges on the grounds that they were not executed in accordance with the new (draft) legislation.
It is likely that to avoid challenges on these grounds, it will be best practice to visually and audibly record the testator and the witnesses signing the Will. However, even where this is done, there will be grounds for challenge where there is a temporary break in the communications.
Where there is a successful Will challenge for lack of testator capacity or where there is undue influence, the Will does not have effect and either the testator’s former Will will be re-instated or the rules of intestacy will apply. The same is likely to apply where there is a successful challenge that the Will has not been executed correctly.
Who should execute their Wills by video-link?
In short, it should only be executed in this way as a last resort, given:
- we do not know what the legislation will say, and indeed whether it will even become the law;
- the process will in most cases take longer than it would under the traditional method;
- the further convoluted process adds extra levels at which mistakes may be made, or which open the Wills executed in this manner to further (and potentially easier) grounds of challenge in the future.