At WillPack we get a large number of technical queries from our partners. This means the team is often looking into very varied and interesting areas of law. In this feature of the newsletter we will focus on some our more unique queries and pass that knowledge on to you!
Since the outbreak of COVID-19 and the recommendation of social distancing, we have had a number of queries regarding whether a will could be witnessed via a video call, such as Skype or Facetime. This week we will consider whether this is possible.
S9 Wills Act 1837 deals with how a will is validly signed and attested. It states the following:
No will shall be valid unless—
- it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
- it appears that the testator intended by his signature to give effect to the will; and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either—
- attests and signs the will; or
- 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.
The main question arising from here when considering remote witnessing via a video link is the meaning of ‘in the presence of the testator’.
What does presence mean?
S9 does not specifically state whether physical presence is required. The Law Commission looked at this issue in a consultation in 2017 and confirmed that:
For a will to be valid, the testator must sign or acknowledge his or her signature in the presence of both witnesses and the witnesses must sign or acknowledge their signatures in the presence of the testator. Whether the parties are in each other’s presence is currently decided with reference to whether they are in the same room and whether there is a line of sight. That rule would be difficult to apply where a witness is said to have had a line of sight to the testator via an online videoconference (there has been no such case). However, it is unlikely that the current law governing witnessing extends to witnessing via videoconferencing because “presence” has been held to involve physical presence.
The current law therefore is that physical presence of the witnesses is required and witnessing via a video link is unlikely to be valid. We would therefore highly recommend against witnessing via video link unless the law is clarified in the near future.
Will writers are now in a difficult position where they will need to advise the testator to have two independent witnesses to sign their will but this would be against the government’s own advice to avoid physical contact as much as possible. You may wish to send the will to the testator for them to organise their witnesses and sign themselves. We have separate guidance on this to be found here.
A potential further option could be to rely on a previous, but old, case of Casson v Dade from 1781. In that case, the will was signed in the presence of the witnesses, but the testator felt faint and went out to sit in her carriage outside of her attorney’s offices. She then saw her witnesses sign her will through the window of the office. A will signed by the testator, witnessed by two witnesses through a window, who then themselves sign the will, with the testator watching through the window, would satisfy the requirements of S9. Much care would need to be taken with this approach to ensure that the will is still validly signed and to ensure that the virus is not potentially transferred from person to person via the handling of the will.
If you have any questions on this, please do not hesitate to contact us on [email protected].