Honora Jenkins and her legacy — a further update
Formalities of will-making in England and Wales during the coronavirus pandemic
This is an update to blogs I have previously published on this subject on 29 March and 6 June 2020, and accompanies a webinar broadcast by my chambers, 5 Stone Buildings, on 21 August 2020.
On 25 July 2020, just before the end of the legal and Parliamentary year, the Ministry of Justice announced that the Government would be introducing legislation in September 2020 making changes to the attestation requirements in the Wills Act 1837. This announcement had been anticipated for some time, and follows well after similar legislation introduced in English speaking jurisdictions around the world which have the same fundamental law as is in s9 of the 1837 Act. This intended legislation will be both temporary (expiring on 31 January 2022 unless that period is itself shortened or extended) and retrospective, to 31 January 2020, the date of the first registered coronavirus case in England and Wales. These are both novel features of the law on the formal validity of wills, which otherwise tends to have the same sort of long-lasting durability as wills themselves. There is also something rather reminiscent of the Cheshire Cat in Lewis Carroll’s Alice in Wonderland in the sequence of events. An official announcement and published guidance precede the legislation itself, in the same way that the Cheshire Cat’s grin appeared hovering above a tree before the rest of its body came into view. There is not even a published draft of legislation as yet to accompany the guidance.
Unsurprisingly, the professional body STEP, which published a briefing note on the proposed amendments on the same day, urges its members to use extreme caution in deciding whether or not to participate in remote witnessing before any legislation comes into force, and recommends that such participation should be followed up by conventional signature and witnessing wherever possible. This is obviously wise advice, and advice which has been adopted by solicitors who have already used video technology for remote witnessing of wills since 31 January 2020. STEP advises professional practitioners to recognise that remote witnessing creates a greatly increased risk of challenges to the validity of a will. These will now include challenges arising from any failure to follow the new legislation correctly.
Giving shape and form to the Cheshire Cat
The actual change in the prospective legislation is relatively modest. It closely resembles changes which have been brought into force, in some cases months ago, in other English-speaking jurisdictions around the world. According to the Ministry of Justice announcement and published guidance, the Wills Act 1837 will be amended to state that the “presence” of testator and two witnesses includes virtual presence via video link, as an alternative to physical presence. As has been recognised for hundreds of years, physical presence within the meaning of the Wills Act means presence within a line of sight, rather than touching distance. The prospective change will leave Honora Jenkins, the asthmatic testatrix in the case of Casson v. Dade(1781) Brown’s Chancery Cases 9, as a figure of legal history, sitting in her coach outside the window of her hot and stuffy solicitor’s office as the witnesses signed her will inside the room. Honora Jenkins’ present-day counterpart will be a two-dimensional presence in a gallery on a screen, using the live video-streaming technology for business and social contact with which many people have become familiar — often to the point of fatigue with it — over the past few months.
The actual form of the legislation appears most likely to be a statutory instrument made under the Electronic Communications Act 2000. Subordinate legislation has been a feature of much of the rule-making throughout the coronavirus crisis, and the Coronavirus Act 2020, which was rushed through Parliament in March, did not make any provision for potential change to wills legislation at all. Nor does the Wills Act 1837 contain any power to make subordinate legislation, unsurprisingly, given its age. The Electronic Communications Act 2000 is an act, in the words of its long title “to make provision to facilitate the use of electronic communications and data storage”, and its principal enacted provision for this purpose was for the admissibility of electronic signatures in legal proceedings. But it also contains a potentially wide-ranging power in s8 to modify the provisions of any enactment or subordinate legislation for the purpose of authorising or facilitating the use of electronic communications or electronic storage for purposes which are set out in s8(2). The s8(2) purpose which appears relevant here is s8(2)( c)
“the doing of anything which … is required to be or may be authorised by a person’s signature or seal, or is required to be delivered as a deed or witnessed”
and it seems reasonable to interpret the proposed amendment as one which facilitates the use of electronic communications, which are defined by s15 as
A communication (elsewhere in s15 defined as a communication comprising sounds or images or both) transmitted (whether from one person to another, from one device to another or from a person to a device or vice versa) —
(a) by means of an electronic communications network; or
(b)by other means but while in an electronic form;
The Ministry of Justice and professional bodies involved in negotiating this amendment and drafting guidance to it see it as a last resort, emphasising the desirability of continuing compliance with the Wills Act 1837 as it stands. My impression over the past few months is that many wills made under professional supervision have complied with the Wills Act and the “visual sightline” rule, with some ingenuity about social distancing and compliance with public health regulations at the same time. The true extent to which either professionally drafted and supervised or home-made wills have attempted, and more importantly, succeeded in compliance with some non-existent but projected retrospective legislation remains to be seen.
What will be required to comply with the new legislation?
As the Ministry of Justice’s guidance makes clear, s9 of the Wills Act will continue to apply, and wills must be compliant with it. One question which the legislation will clarify is whether the amendments apply to the entirety of s9, or whether they will exclude the alternative provision in s9(a) for a will to be signed, not by the testator, but “by some other person in his presence and at his direction”. There is no more than a passing reference in the published guidance to the involvement of such a person. Subject to this, the only change to be made is to introduce video streaming into the meaning of “presence” in s9 for the moment of signature or acknowledgement of signature by the testator and the two witnesses. The person making the will and the two witnesses must still each have a clear line of sight of the writing of the testator’s signature, and the witnesses must sign the will itself afterwards.
- The witnesses must see the testator sign, not attest a pre-recording of his or her signature
- The testator must see the witnesses sign, and not attest a pre-recording of their signatures
This means that in every case there will be at least two separate video sessions to set up, supervise, and record.
The Ministry of Justice’s published guidance makes it clear that any permutation of actual presence — testator and one of the witnesses together, the other witness elsewhere, testator alone and witnesses together elsewhere, or all three alone and in separate locations — is permissible provided that the video technology links them simultaneously and in real time.
STEP’s published guidance also deals with impact of technical problems arising from loss of bandwidth or internet connection during a live-streaming occasion, and suggests that if there is a break during the testator’s signature, s/he should acknowledge their completed signature by holding it up to the camera, and that the same should apply to the witnesses’ signatures where relevant.
It’s important to note that the proposed amended legislation will not extend compliance to either
- Electronic signatures of any kind. Each signature must be a conventional pen and paper signature, or
- Execution of separate but identical counterpart documents, one signed by the testator, and the other by the witnesses. There must be one document, which all three have signed, in each others’ presence as required by the amended legislation.
The Ministry of Justice’s published guidance describes five stages of the process of valid signature and attestation using video technology.
I think the last point at this stage is a very important one. Some of the other jurisdictions which have introduced similar legislation have more demanding identity verification requirements than this, and robust identity verification is particularly important in a world where an entire spurious video may be made using ‘deepfake’ technology.
The last point in the guidance here is crucial. In the event that the testator dies before the will can be signed by the witnesses, it is not valid. In these circumstances, which might well arise, as medical emergency is the most likely circumstance in which remote video signature and witnessing might be used, it is essential to get the document from the testator to the attesting witnesses as quickly as possible.
One issue which none of the guidance yet published deals with is whether the will is valid if the testator loses capacity (as might well happen in a medical emergency) in between witnessing the will, and the witnesses themselves signing the document. This is a novel issue, as s9 of the 1837 Act as it stands is usually complied with on a single simultaneous occasion of signing and witnessing. There have been some cases of longer delay, or of a testator losing capacity during the occasion. In such a case, the will is invalid, as attestation requires both the mental and physical presence of the testator. In 1946, an elderly woman called Ellen Chalcraft made a codicil to her will on the day of her death, when she was suffering from terminal cancer and had been given a large dose of morphine. She was able to indicate assent to the wording of the codicil, make an incomplete signature to it, and see the attesting witnesses sign their names, before lapsing into unconsciousness as an effect of the morphine she had been administered. It was disputed whether Ellen Chalcraft had sufficient mental presence for the attestation to be valid, but the court in Re Chalcraft  P 222, considered on the evidence that she did so.
In circumstances where there is a longer delay between signing and attestation, and the testator’s capacity fluctuates downwards during this interval, there may be some analogy with the case law (Parker v. Felgate 1883 8 PD 171) and modern discussions of it) on capacity where there has been a time lag between giving instructions for a will and actually executing it. Clearly the testator will as a practical minimum require sufficient capacity to be aware that s/he is participating in the second round of live video streaming in which the witnesses sign or acknowledge their signature of the will, in order to participate at all. In the absence of further guidance, or a judicial decision on the point, I would tentatively suggest that this minimum practical requirement should also be the legal test, and that whether the testator retains full Banks v. Goodfellow capacity at this stage of attestation should be irrelevant, as there is no more active participation required from the testator at this stage. I think this test would also satisfy the test of mental presence established under s9 of the 1837 Act as it stands.
One risk of fraud that is exacerbated by this stage of remote witnessing is the interposition of pages of a document which were not part of the original will. STEP recommend that each page should be initialled or signed by the testator.
The briefing note published by STEP also recommends the use of model attestation clauses which accurately reflect the form of signature and attestation where video has been used for a remote process.
One point which is not mentioned in any published guidance to date, as far as I am aware, is territoriality. A solicitor I have been in correspondence with has clients who own leisure boats and who are relatively mobile and less land-based than many other people, and raised the question. I do not think that there is any territorial restriction on the presence of either testator or witnesses, although there may be obvious practical issues about ensuring that the same document is transferred from testator to witnesses if all are on separate boats in different parts of the world. Section 1 of the Wills Act 1963 provides that
“A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national.”
This is described as a general rule as to formal validity. S2(1)(a) adds, without prejudice (so, in addition) to s1, that a will executed on board a vessel or an aircraft will be treated as properly executed “if the execution of the will conformed to the internal law in force in the territory with which, having regard to its registration (if any) and other relevant circumstances, the vessel or aircraft may be taken to have been most closely connected”.
These provisions make the place of execution irrelevant if one or more of the connecting factors to England and Wales is present.
Another important point, of more general application, discussed both in STEP’s briefing note and academic commentary on the proposed amendments is the issue of confidentiality. Under the Wills Act 1837 as it stands, the testator does not need to disclose the will in its entirety to either of the witnesses in order for the signing and attestation to be valid. Under the proposed amendments, the witnesses will have the opportunity to read the will, and this may not be desirable. Although a beneficiary or the spouse of a beneficiary cannot be a witness to a will, the parent or sibling or other relation or anyone unconnected by kinship can be a witness, and may have strong feelings about the inclusion in or omission from the will of someone they are connected with. STEP recommend that the person who drafted the will should where possible act as a witness and should be responsible for arranging the involvement of the other witness, who will probably be an office colleague or assistant.
The value of attestation by two witnesses
Traditionally, the requirement of physical presence, visual sightline and two witnesses was to protect the testator from fraud, as well as to provide some degree of safeguard against wills being made by incapacitated testators or subject to the undue influence of someone else. One of the campaigners for purely oral or video-recorded wills described the existing law as “draconian”, but this is to miss the point — it is not a law which is oppressive to those it affects, but is intended to be a meaningful safeguard.
There is no explicit requirement for a witness to a will to consider these well-known potential vitiating circumstances and make any kind of declaration about them, by contrast with the role of a certificate provider under a lasting power of attorney made under the Mental Capacity Act 2005. Such a certificate provider must satisfy himself or herself that the person creating the lasting power has mental capacity to do so and is free from undue pressure, and sign a certificate to that effect. Wills, particularly home-made wills, or those which have been professionally drafted but not executed under professional supervision in the solicitor’s office, are quite often witnessed by strangers or near-strangers, in a fairly perfunctory way, where the witnesses might well be oblivious of questionable capacity or undue influence in the background. The proposed new legislation will not impose any greater burden of enquiry on witnesses than the Wills Act 1837 does, still less any requirement to declare or certify anything about the testator’s capacity or freedom of will. However, the Ministry of Justice guidance states that the person making the will must be acting with capacity and in the absence of undue influence, and suggests that the whole video-signing and witnessing process should be recorded and the recording retained as “this may assist a court in the event of a will being challenged — both in terms of whether the will was made in a legally valid way, but also to try and detect any indication of undue influence, fraud or lack of capacity”.
The STEP briefing note goes into further detail and stresses the difficulty of assessment of capacity and freedom from undue influence where a professional is not in the same room as the person making the will, with a number of practical recommendations.
Which wills executed since 31 January 2020 will be excluded from the new legislation?
Any wills which do not comply with the new legislation or with s9 Wills Act 1837 as it currently stands. For example, any attempts to make a will which consist simply of a video recording of an oral statement, or of witnesses dealing with a pre-recorded video of the testator.
Any wills of which a grant of probate has already been issued — but by definition these will be wills which the probate registry has accepted as valid, and so will not be a problem.
Any wills in respect of which the application (for probate) is already being administered. This suggests that any will which might comply with the prospective new legislation, but fail to comply with the Wills Act 1837 should not be the subject of an application for probate until the new legislation is in force.
Is everyone happy with the Government’s proposal?
Inevitably, the answer to this is ‘no’. There are people who believe that any departure from the Wills Act as it stands is too great a relaxation of safeguards against fraud, and there are others who would like legislation to provide for wills which are entirely electronic, and do not require paper and actual signature at all. But this legislation is only temporary and will be followed by fuller consideration of the work done by the Law Commission in 2017, ultimately to bring forward primary legislation making a permanent change. This Wills Act 2025, or whatever the date of its ultimate enactment (whether it arrives before or after the much-postponed Crossrail project is anyone’s guess), may well give effect to a more significant lasting departure from the Wills Act 1837, including, quite possibly, a dispensing power permitting a court to validate a will made in an informal way, such as those in a number of other English-speaking jurisdictions. The experience of remotely witnessed wills made under the prospective amendment to the legislation will no doubt inform any permanent changes made. The ultimate objective will be to reconcile the desirability of giving effect to people’s wishes for the disposition of their property after their death, with the desirability of avoiding an additional burden of expensive and disheartening legal challenge to the validity of the instrument by which they do so.
Ministry of Justice guidance on making wills using video conferencing - 25 July 2020
STEP briefing note: Execution of wills using video witnessing 25 July 2020
Witnessing Law Reform in the Coronavirus Era — Oxford Faculty of Law blog written by Brian Sloan, lecturer in law, University of Cambridge — 8 August 2020
The Law Commission’s 2017 wills project
This blog is written for general discussion of the law as in force in England and Wales on 21 August 2020, and is not intended to be and should not be relied on for specific legal advice.