Coronavirus and the Electronic Witnessing of Wills: The Legislation Analysed
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In a previous post, I discussed the Ministry of Justice’s announcement that electronically witnessed wills would be validated. The reform was a response to the problems that social distancing, shielding and hospital admission caused for will-making in the context of the pandemic. The relevant (brief) legislation has now been laid before Parliament. As expected, the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 would amend the definition of ‘presence’ in the Wills Act to include videoconferencing (via a new section 9(2)). Unless that Order is actively annulled, from 28 September 2020, section 9 of the Wills Act will read as follows:
(1) 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.
(2) For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January 2022, "presence" includes presence by means of videoconference or other visual transmission.
There are few surprises in the legislation, which could be extended or brought to an end earlier. Much of my previous analysis thus remains relevant. A few points are nevertheless worth highlighting. I am extremely grateful to Ian Bond, Juliet Brook, Rich Greenhill, Charlotte Johns, Alexander Learmonth, Levins Solicitors, Aileen McHarg, Barbara Rich and Alison Young for interactions that have informed what follows. While the Government has made a number of supportable choices in the legislation, questions remain about its effect on existing grants, vires, and as to whether it has dealt adequately with some difficult issues raised by the time lags between signing a will and witnessing.
The phrasing of the new section 9(2) is both simple and inclusive. This admirably makes it likely that those who attempted to make anticipatory compliant wills before the legislation was published will have succeeded in doing so, even if a timelier and more coordinated approach from the Ministry of Justice would have been preferable. It is to be hoped that the phrase ‘by means of videoconference or other visual transmission’ will not give rise to disputes.
It is clear that the new definition of ‘presence’ will apply to witnessing only, and not to situations where someone other than the testator signs the will in the testator’s presence and by their direction (s 9(1)(a)). This is a deliberate and supportable choice, since the scope for fraud may increase where the will was potentially never in the physical presence of the testator.
The 2020 Order expressly provides (in Article 3) that the new definition will not affect any ‘grant of probate made’, or (perhaps superfluously) ‘anything done pursuant to a grant of probate’ before the Order came into force (presumptively 28 September). Conversely, the Order’s Explanatory Memorandum asserts that the new definition will apply even where a grant of letters of administration has already been made. Both of these are orders authorising the administration of an estate, but grants of probate are broadly associated with testate situations and grants of letters of administration are broadly associated with cases of intestacy. The apparent purpose is to prevent an electronically witnessed will from unravelling an existing grant of probate based on a ‘traditionally’ witnessed will, even though the (subsequent) electronically witnessed will is validated by the Order. On the other hand, the Government wishes to allow an electronically witnessed will to override the intestacy rules applicable where the deceased left no other valid will, even where the relevant grant has already been made. This is normatively understandable. Overriding a grant in either situation will be disruptive, and potentially give rise to disputes, particularly where assets have already been distributed to ostensible beneficiaries. But while an older ‘traditionally’ executed will at least represents a version of the deceased’s intentions, the intestacy rules may have no relation to those intentions. Any disruption in cases of intestacy might therefore be worthwhile.
There are, however, two problems with the legislation’s approach to existing grants. First, as practitioners have been quick to point out, technically it is a grant of letters of administration that is issued where the deceased did leave a will but did not appoint an executor. This means that the legislation does not necessarily achieve the objective of allowing only the intestacy rules, but not a will, to be overridden. Secondly, the approach to grants is inconsistent with the guidance published alongside the announcement in July. The guidance suggested that the reformed definition of ‘presence’ would not apply where an application for a grant of probate was still being administered, but the legislation apparently excludes only cases where the grant has already been made and the Explanatory Memorandum supports that interpretation. Worryingly, however, the Memorandum also implies that the guidance on the Order remains that published in July, despite the inconsistency. Confusion seems almost inevitable. It is frustrating that some of these problems could potentially have been avoided if the announcement, guidance and legislation had been published both simultaneously and swiftly, since that may have allowed the legislation to be prospective only even if that excluded a small number of deserving cases.
The fact that section 9(2) will not affect either section 9(1)(a) or a pre-existing grant of probate highlights an oddity. As explained in my previous post, it was not entirely clear that the pre-Order definition of ‘presence’ excluded videoconferencing in the first place, the matter not having been directly addressed by case law. Now, however, Parliament will have stated expressly that a definition including videoconferencing (in section 9(2)) should not apply in some circumstances. In that context, it would be difficult for a judge to decide that (for example) the definition of ‘presence’ applicable to section 9(1)(a) included presence by videoconferencing even without the benefit of Article 9(2). That decision would hardly be consistent with Parliament’s apparent intention. The 2020 Order thus potentially renders itself crucial, whereas its effect might otherwise have been achieved by case law. In any event, it is useful to have the matter clarified, albeit imperfectly and for a limited time. Questions will remain about whether the judiciary could legitimately develop the definition of presence when the Order expires.
There are a number of further unresolved issues involving the Order. It was made under sections 8 and 9 of the Electronic Communications Act 2000. Section 8 allows a Minister to make an order amending legislation for the purposes of ‘authorising or facilitating the use of electronic communications’, including in relation to witnessing. But the Minister must consider the use of electronic communications to be ‘no less satisfactory…than in other cases’. The guidance’s emphasis on electronic witnessing being a last resort casts doubt on whether the Lord Chancellor holds the necessary view. Some commentators have also suggested that the Order may be ultra vires (and therefore invalid) to the extent that it applies retrospectively, because section 8 does not explicitly grant power to make a retrospective order. Again, this could have been avoided if the legislation had been prospective only but introduced earlier. Even the Order is valid, it contains no express provision to deal with the enhanced power potentially held by remote witnesses, identified in my previous post. Perhaps it would have been too difficult to solve the possible problems by legislation, for example by extending the rule that gifts to witnesses and their spouses/civil partners are void to cover more relationships, without compounding the very difficulties faced by testators during the pandemic. The solution may simply lie in very careful choice of witnesses. The new legislation also fails explicitly to address the potential for a testator’s loss of capacity between the times when the testator signed etc and when the witnesses signed etc. Case law does not directly deal with situations involving a partial loss of capacity between these (separated) stages where the will is not in the testator’s physical presence at the second stage, and the Order makes such a scenario more likely. Complications surrounding the will’s date are also left unaddressed.
Perhaps in time the 2020 Order will come to be seen as a modest and appropriate response to deal with an emergency situation, particularly as restrictions on gatherings begin to be tightened again. There is a real risk, however, that the reform will be seen as the worst of both worlds: failing to include some of the difficult situations in which would-be testators find themselves during the pandemic, and yet still generating disputes. A hint of the controversy is provided by an Early Day Motion seeking the Order’s annulment, even if such activity is very unlikely to succeed. At the very least, a timelier response would have reduced some of the difficulties, and the Government would do well to learn that lesson. It is to be hoped that the difficulties faced in the coronavirus era will push more wholesale reform of the law of wills up the political agenda, allowing the Law Commission to complete its Making A Will project soon.
How to cite this blog post (Harvard style)
Sloan, B. (2020). Coronavirus and the Electronic Witnessing of Wills: The Legislation Analysed. Available at: https://www.law.ox.ac.uk/research-and-subject-groups/property-law/blog/2020/10/coronavirus-and-electronic-witnessing-wills (Accessed [date]).