Witnessing Law Reform in the Coronavirus Era

The Coronavirus pandemic has had a profound impact on many areas of life. Early in the crisis, it became clear that will-making could be especially difficult in the era of Covid-19. In particular, section 9 of the Wills Act 1837 provides that:

No will shall be valid unless—

(a)   it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

(b)   it appears that the testator intended by his signature to give effect to the will; and

(c)   the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d)   each witness either—

(i)             attests and signs the will; or

(ii)            acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.

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Some aspects of section 9 have not been subject to definitive interpretation by the courts in the context of modern life, but it was clear that compliance could be difficult for people who were admitted to hospital suffering from Covid-19, shielding or even practising social distancing. This is particularly true given that that members of the same household are likely to be the most conveniently accessible witnesses, but are also likely to be beneficiaries whose benefits would be rendered void if they did act as witnesses. On 25 July 2020, the Government announced a response, and the purpose of this post is to analyse that response.

Possible solutions to the conundrum included the use of a dispensing power, allowing the courts the discretion to admit a will to probate notwithstanding a failure to comply with section 9. Alternatively, it would be possible to extend the ‘privilege’, currently applicable only to certain soldiers and seamen in active service, to have a will considered valid despite non-compliance. The policy implications were complex, however. While the difficulties are particularly acute for those who suddenly become seriously ill and find themselves isolated in intensive care without having made appropriate testamentary arrangements, it is also arguable that rigorous adherence to formality requirements is distinctly important in protecting those who are seriously ill and vulnerable to hallucinations etc. Fuller famously identified the protective, cautionary, evidentiary and channelling functions of formalities, each of which plays a role even in the shadow of coronavirus.

Policy arguments associated with the various possible responses are very well covered in blog posts/articles by Barbara Rich, Juliet Brook, Charlotte John and Ian Bond. I am extremely grateful for their contributions to the discussion that has been raging in the Succession Law community in recent months, significantly informing this post.

The Ministry of Justice has announced that section 9 ‘will be amended to state that…the “presence” of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence’. This will allow for wills to be executed over Zoom calls etc, with the possibility that the testator and each witness will all be in separate physical locations. The Ministry of Justice has also published detailed guidance on the anticipated provisions, and the Society of Trust and Estate Practitioners has published its own briefing note. In the context of this brief post, it is worth emphasising a number of points.

First, the relevant legislative changes (to be made via an order under the Electronic Communications Act 2000) will not be in force until September due to the need for them to be laid before Parliament. This delay is unfortunate, particularly in light of the length of time for which the problem has been appreciated. While the changes will retrospectively apply to wills executed on or after 31 January 2020 (the date of the UK’s first reported Covid-19 case), would-be testators cannot yet be sure they will be enacted. The legislation has not yet been published even in draft, raising the possibility that an attempt to comply with the anticipated new provisions may be unsuccessful. In addition, the video procedure will not be acceptable where a grant of probate has already been issued or sought. Relatedly, the change will expire on 31 January 2022, unless explicitly extended or terminated earlier.

Secondly, the change is a modest one, not least since it is debatable whether a virtual ‘presence’ is excluded from the current law. It is arguable that a video link could supply the currently necessary ‘line of sight’, albeit significant that the Law Commission thought otherwise. Fundamentally, and unlike in the case of a dispensing power, the formality requirements will still be fully applicable but modified, and the scope for damaging litigation thus potentially (but not necessarily) reduced. It seems that, despite the relaxation relating to witnesses (applying to sections 9(c)-(d)), those signing on behalf of the testator (under section 9(a)) must still be in the physical presence of the testator. This is justifiable to avoid validating wills that were never in the testator’s physical presence, and a 9(a) signer can be a beneficiary. Moreover, while the new legislation will apply to codicils as well as wills, it is significant that (despite media confusion on the point) it will not validate ‘true’ electronic/video wills. Even under the new procedure, the will would be a physical document that happens to have been witnessed electronically.

Thirdly, reliance on the new provisions is intended to be a last resort, and STEP recommends that the will should be re-executed under the conventional method where possible. The ‘last resort’ status is a reasonable safeguard given the possible increased scope for undue influence brought about by electronic witnessing. It is noteworthy, however, that the new procedure offers the opportunity easily to record the execution process, which will assist in the event of a later dispute.

Fourthly, the guidance is admirably mindful of possible ways in which the new procedure could be abused, and includes some appropriate safeguards. For example, witnessing via pre-recorded video will not be accepted, and the testator and the witnesses will have to sign the same copy of the document rather than using ‘counterpart’ copies.

Fifthly, and conversely, solving the overarching practical problem will create some new ones. An obvious one is the likely freezing of screens etc, though there is at least the possibility of acknowledging a signature after the event where a technical problem prevented the signing being seen. That said, in normal circumstances, both the testator (or the person signing at his direction) and the witnesses would sign the will on a single occasion, after which it would be valid. Under the new procedure, however, each witness would be sent the original will after the testator signs it, and often (at least) a second video call would have to take place in which one or more of the witnesses either signs the will or acknowledges the signature in the testator’s virtual presence. If the witnesses are not themselves physically present with each other, a third call will be necessary with the testator. Each of these stages introduces delay into the process, with the risk that the testator dies before the will is validated and some uncertainty about the will’s date and the effect of intervening capacity loss. There is an unfortunate irony that a process introduced to cope with the possible need for increased urgency in will-making may sometimes be longer and more complicated than under the existing law.

Sixthly, the fact that each witness might receive the will ‘privately’ (eg by post) means that confidentiality might be breached and that the will might be interfered with. Usually, the witness is not entitled or expected to be concerned with the substantive content of the will, whereas under the new law there will be a theoretical opportunity to refuse to validate the will until it is amended (eg to benefit the witness’ child). It will be necessary to choose witnesses who are not only non-beneficiaries, but also ideally who have no expectation, hope or desire for anyone strongly connected to them to benefit under the will. That said, openness about the will’s contents from the outset might assist the witnesses in verifying that a document later propounded as the deceased’s will is indeed the one that they saw being signed.

Another consequence of receipt by post is that a witness could attempt to interfere with the will by (for example) substituting one page for another. The STEP briefing note sensibly advises that all those signing should sign or initial each page to guard against substantive alteration during the process. It has always been the case, in any event, that witnesses need to be chosen carefully.

The Government’s response will inevitably exclude some would-be testators from making valid wills at this time, and some consider it futile. It is nevertheless arguable that the new legislation will achieve an appropriate balance between continuing the essential protection of formalities and allowing them to respond flexibly to a novel situation. It is thus to be welcomed, even if a more timely approach would have been preferable.

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How to cite this blog post (Harvard style) 

Sloan, B. (2020). Witnessing Law Reform in the Coronavirus Era. Available at: https://www.law.ox.ac.uk/research-and-subject-groups/property-law/blog/2020/08/witnessing-law-reform-coronavirus-era (Accessed [date]).