The Legislation Society’s practice guidance on executing wills through the coronavirus pandemic opens with this daring assertion:

‘Below the Wills Act 1837, it’s not permitted to witness a will by way of video messaging as a witness have to be bodily current.’

This view has been adopted by the occupation at massive, virtually as an article of religion. The prevailing rationale appears to be that as a result of on-line video streaming know-how is so novel, there is no such thing as a case authority expressly sanctioning its use. That a lot is true however the utility of the widespread legislation requires somewhat greater than this type of tick field strategy.

Heretic or not, I freely admit to enterprise your entire means of signing, witnessing and testifying a will on-line on 1 Could for a shopper who was in self isolation 150 miles away.

A lot as I hate to disappoint the doom-mongers amongst us, I’m quietly assured that my shopper’s will is legitimate. The companions at Solicitors Title LLP, who sanctioned this, are skilled business legislation specialists and so used to creating troublesome judgement calls involving abstruse factors of legislation. Naturally, the shopper was warned that this process was as unprecedented because it was controversial.

Section 9 of the Wills Act 1837 doesn’t specify how a witness’ ‘presence’ ought to be manifested, any greater than it defines what it means by ‘writing’. This has allowed part 9 to include new applied sciences the place they don’t undermine the statutory goal. For instance, kind written wills wouldn’t have been envisaged in 1837 as ‘writing’ however they have been in ubiquitous use lengthy earlier than 1982.

Part 9’s sole goal is fraud prevention. Its broadly scoped provisions and the constantly pragmatic strategy of its judicial building has preserved its effectiveness all through greater than three centuries of social growth. In all that point, not one choice has insisted on a bodily ‘presence’. The place the testator indicators the need, what’s required is a line of sight, one that permits a witness to watch and attest to this act: no extra; no much less. Video know-how permits a reside recording of your entire proceedings to be made, which boosts the safety in opposition to fraud.

In Hudson v Parker (1844) 1 Rob Eccl 14, Sir Jenner Fust thought-about what part 9 meant by ‘presence’, he had this to say:

What may probably be the thing of the Legislature, besides that the witnesses ought to see and take heed to the act completed, and be capable to show it by their very own proof?’

Additional on, he observes: ‘…if a press release be questioned, doesn’t an individual say, “I used to be current and may attest its correctness,” and doesn’t the entire world perceive by this, psychological, not bodily, presence? Wouldn’t a opposite building result in absurdity, and defeat the plain intention of the statute?

I take the view that if reside streaming video know-how permits the distant witnesses, to ‘see and take heed to the act completed, and be capable to show it by their very own proof’ (per Sir Fust) then prima facie it complies with the act. A number of overseas widespread legislation jurisdictions have already legislated to sanction remotely executed wills.

I shared my analysis and confessed all to the Ministry of Justice just lately. As an alternative of a rebuke I obtained a gracious and inspiring reply that comes as near accepting my evaluation as I may hope for. Nevertheless, I used to be reminded that as there is no such thing as a clear precedent both approach the uncertainty stays. The letter signifies that the federal government is contemplating retrospective laws on this context and plans to make an announcement ‘very quickly’.

The Legislation Society has declined to amend its steering insisting on a witness’ bodily presence. It claims that the Legislation Fee Making a Will report from 2017 asserts this. That’s solely partially correct. The Legislation Fee’s pre Covid19 view (at 6.32) was ‘… it’s unlikely that the present legislation governing witnessing extends to witnessing by way of videoconferencing as a result of “presence” has been held to contain bodily presence (Within the items of Chalcraft [1948] P 222)’. Elsewhere (at 5.20) the report cites Hudson to the identical impact. The awkward reality of the matter is that each of those selections set up no such factor: the testamentary witnesses have been bodily current in each cases.

Given the current uncertainty, it’s important that the federal government expedites its legislative proposals. The rule of legislation insists on authorized certainty. My hope is the federal government will undertake the sound precedent set, months in the past, in a number of different widespread legislation jurisdictions of creating the administration and supervision of distant will executions a reserved exercise.

 

Dr Nicholas Bevan, solicitor and senior affiliate at Solicitors Title LLP