As anyone who has attempted to complete their Will over the last few months will know, the process of attestation has been a veritable pain in the proverbial.
Wills Act 1837
Attestation in the case of Wills simply means signing. However the formalities for this process, as laid out in section 9 of the Wills Act 1837, are strict. First the person whose Will it is (Testator / Testatrix) signs in front of 2 independent witnesses who must both be present at the same time. Then both witnesses must sign in the presence of the Testator.
During times of lockdown, gathering a couple of friends or neighbours together, or perhaps accosting 2 strangers from the street, to witness your Will has proved difficult for most and impossible for some. Helping those ‘some’, who are often the most vulnerable amongst us, and sometimes in urgent need of completing their Will, has been of considerable concern for private client solicitors.
In light of this, practitioners have been pondering the possibility of remote witnessing. There is precedent for this; For some time, it has been perfectly acceptable to witness some commercial contracts and deeds remotely. The Wills Act itself does not define the word presence, so although it may be somewhat of a stretch to suggest that Zoom conferencing was foreseen by the legislators of 1837, it is entirely possible to argue that s.9 should be construed to allow remote witnessing.
Nevertheless, this has never been tested in Court and the fallout if a Will is found to be invalid cannot be underestimated. As a result, most practitioners have taken the view that remote witnessing is too risky and have put in place elaborate processes to enable safe execution.
Now the government have waded in and tabled a statutory instrument amending section 8 of the Electronic Communications Act 2000, that will temporarily enable the remote witnessing of Wills. This is expected to come into force next month and will last until 31st January 2022. The legislation itself also has retrospective effect for Wills witnessed remotely after 31st January this year. It will only be effective in England and Wales.
So, hurrah? Or maybe not.
The Society of Trust and Estate Practitioners
STEP have outlined how they think the process should work here.
As you will note, the process is elongated and quite complex. It also requires technical administration and ideally the facility to record the 2 signing conferences. For urgent Wills, or for people without technical savvy, this will be impossible. We are also no longer in lockdown. Yes, it might strike again, and there are still those in self-isolation, however we have devised robust methods to complete Wills over these past few months whilst adhering to social distancing (in gardens, through windows, with separate pens and loads of hand sanitiser etc) that enable Wills to be completed.
There is also a real concern about undue influence. With fixed webcams, it is impossible to know for certain that there is no other person in the room influencing the Testator. With a professionally drafted Will this risk can be mitigated, but the general feeling is that homemade Wills (terrible idea at the best of times) will be wide open to challenge if they are completed in circumstances that arose the suspicions of disgruntled family members.
In summary, whilst the new legislation is clearly well intentioned, it remains our advice to complete your Will the old-fashioned way. It is widely expected, even with the change in law, that there will be numerous Court cases in the future stemming from remote witnessing and avoiding this for most people is actually easier than going through the rigmarole in the first place. If you feel that your circumstances are such that remote witnessing is the only option available to you, then professional assistance should be sought so the whole process is properly documented and your estate protected from future claims.
If you have any queries or concerns relating to remote witnessing, please do not hesitate to contact any member of our Wealth Management and Taxation Team.