On the 11 January 2022, the Ministry of Justice announced that the temporary measures allowing for the remote witnessing of wills in England and Wales would be extended to January 2024. While the rules had been celebrated against the backdrop of Coronavirus pandemic, which saw the introduction of national lockdowns, social distancing and self-isolation regimes, many practitioners queried whether wills created under the relaxed measures might attract a higher number of validity challenges later down the line.
In light of the government’s decision to extend the measures, and with signs that they may one day have a more permanent place within the law, it is worth reviewing the underlying rules relating to will execution, as well as the challenges presented by remote witnessing.
Prior to the amendments, for a will to be valid in England and Wales, it was a requirement under Section 9 of the Wills Act 1837 that a testator signs his or her will in the presence of two witnesses, who must each then sign the will in the presence of the testator. Before the changes, only physical presence would suffice. The current measures provide for signatures to be witnessed via videoconference or “other visual transmission” as an alternative.
It is largely accepted that the option to execute a will remotely should be a very last resort. Practitioners are advised to consider the suitability of the option on a case by case basis, given there are a number of distinct risks and practical difficulties to overcome. The following are just a few examples of how remote witnessing may become vulnerable to attack.
Clear line of sight
It is still a requirement under the provisions that the testator and each of the witnesses have a clear line of sight of the act of signing. It must be unobstructed and in live time. A likely issue with this practice is that, depending on how the camera is angled, parties may not have a clear view of the others’ signature at all times, or the papers may become out of frame. This would invalidate the will and the signing process would need to be restarted. Technical difficulties such as internet drop-out, video lag and screen freeze are all foreseeable risks of remote witnessing, which could similarly prevent a valid execution.
In their latest announcement, the Ministry of Justice confirmed that remotely witnessed wills would only be valid where “…the quality of the sound and video is sufficient to see and hear what is going on”. It may come as a surprise, therefore, that it is not a requirement under the measures for the process of remote witnessing to be documented by recordings (although we would strongly recommend this).
Once past the hurdle of the testator signing his or her will, the full original document will need to be physically delivered to each witness, and a separate video conference convened. Depending on the location of the parties, the execution process could become subject to long delays as well as damage or loss to the testamentary document.
A more worrying risk is that the testator might fall ill, lose capacity or die before the process of signing the will by him/her and the witnesses is completed. It is not enough for the testator to have applied his signature. Those of the witnesses must also be present. Any delay to the execution process is also likely to be the subject of criticism where the testator’s capacity is in issue, particularly if they are in failing health.
Fraud and undue influence
The purpose of having two independent witnesses to the testator’s signature is to reduce the scope for undue influence and fraud in the will making process. While the amendments uphold the requirements for independent witnesses, they are arguably of less value where their physical presence is removed.
For example, it is not unforeseeable that a will, first signed by the testator, could be intercepted by a disgruntled beneficiary or loved one, who could easily replace the document with an amended will, forging the testator’s signature. Witnesses are not required to know the terms of the will before the testator signs it, so they would not necessarily be alive to any changes, which are made to the document in transit.
Furthermore, the remote process of will signing invites the risk that the testator could be unduly influenced to sign a will which they do not intend to give effect to. A third party could be present with the testator at the time of signature, but hidden from view of the camera or other parties.
It is hoped that the risks associated with remote witnessing will be reduced where professionals are engaged in the will drafting process, however they clearly cannot be eliminated. With the advancement of technology, in particular the advent of “deepfake” video software, it is easy to see how remotely witnessed wills might come under attack.
While the temporary amendments intended to relieve many would-be testators from falling foul of the 19th century witnessing restrictions, it remains best practice to rely on the remote measures only as a last resort, keeping detailed records of the execution process, and seeking to sign a replacement will in the traditional sense as soon as reasonably practicable thereafter.