Video wills: Covid19 Legislation Clarified
In Video wills: What the Government Really Said, 31 July 2020, I highlighted the conflicting messaging within the government’s press release and its Guidance on making wills using video-conferencing, which was published on 25 July.
The Guidance reflects many of the suggestions that I made for clarifying section 9 Wills Act 1837 in my first letter to Alex Chalk MP in June this year. The fact that the changes have immediate effect, combined with the bold statement of principle that ‘none of the existing relevant requirements are changed by the new law’, appear consistent with the clarification of existing law and not a substantive law change. However, there are other features that are inconsistent with this: such as the extendible two year time limit and its focus just on video-witnessing, as opposed to attestation or delegated signing.
In my second letter to Alex Chalk MP I recommended the Government should adopt a holistic approach to remote wills by applying an identical meaning to each of the four separate instances where the word ‘presence’ is used in section 9 Wills Act 1837: one that is capable of accommodating a virtual ‘presence’ using video technology. This would enable testators to instruct their solicitors to sign their wills in their name under (section 9(a)), remotely. My research, indicated that this was consistent with the common law authorities. I had also suggested that this completely remote wills service should be added to the list of reserved legal activities to ensure due process and fair play. Similar measures have been in place in a number of common law states from Australia to Canada – since April. Unfortunately, I was to be disappointed.
The Advocate General, Lord Keen of Elie QC, replying on the Government’s behalf on 4 August, emphasised that whilst the Government appreciates the health and social benefits of a comprehensive remote wills service, it believes that this would expose testators to an unacceptable degree of risk from undue influence or fraud. Given that concern, it is surprising that the Government should decline to assign this activity to the list of reserved legal activities.
The Government’s proposed legislation is as an emergency measure to address the difficulties that self-isolating and vulnerable will-makers face during this pandemic. Lord Keen’s letter makes it abundantly clear that whilst the Government has adopted the ‘line of sight’ criteria I advocated when sanctioning a testamentary witness’ virtual presence, it believes that a physical presence is required in all other respects.
If, as expected, the new law expressly stipulates that section 9’s use of the term ‘presence’ requires a physical proximity unless otherwise stated, then its practical effect will be to stifle technical innovation.
Solicitors Title LLP have been in the vanguard of those seeking to modernise the law and practice in this area, to help our clients make their wills discretely, conveniently and, above all, in safety. We intervened on 3 June when it was clear that the multiparty discussions had reached an impasse. We are glad that at least some of our recommendations have been adopted by the Government and we look forward to making the most of this modest but welcome reform.