The Law Society’s practice guidance on executing wills during the coronavirus pandemic opens with this bold statement:
'Under the Wills Act 1837, it’s not permitted to witness a will via video messaging as a witness must be physically present.'
This view has been adopted by the profession at large, almost as an article of faith. The prevailing rationale seems to be that because online video streaming technology is so novel, there is no case authority expressly sanctioning its use. That much is true but the application of the common law requires a little more than this kind of tick box approach.
Heretic or not, I freely admit to undertaking the entire process of signing, witnessing and attesting a will online on 1 May for a client who was in self isolation 150 miles away.
Much as I hate to disappoint the doom-mongers amongst us, I am quietly confident that my client’s will is valid. The partners at Solicitors Title LLP, who sanctioned this, are experienced commercial law specialists and so used to making difficult judgement calls involving abstruse points of law. Naturally, the client was warned that this procedure was as unprecedented as it was controversial.
Section 9 of the Wills Act 1837 does not specify how a witness' 'presence' should be manifested, any more than it defines what it means by 'writing'. This has allowed section 9 to incorporate new technologies where they do not undermine the statutory objective. For example, type written wills would not have been envisaged in 1837 as 'writing' but they were in ubiquitous use long before 1982.
Section 9's sole objective is fraud prevention. Its broadly scoped provisions and the consistently pragmatic approach of its judicial construction has preserved its effectiveness throughout more than three centuries of social development. In all that time, not one decision has insisted on a physical 'presence'. Where the testator signs the will, what is required is a line of sight, one that enables a witness to observe and attest to this act: no more; no less. Video technology enables a live recording of the entire proceedings to be made, which enhances the protection against fraud.
In Hudson v Parker (1844) 1 Rob Eccl 14, Sir Jenner Fust considered what section 9 meant by 'presence', he had this to say:
'What could possibly be the object of the Legislature, except that the witnesses should see and be conscious of the act done, and be able to prove it by their own evidence?'
Further on, he observes: '…if a statement be questioned, does not a person say, "I was present and can attest its correctness," and does not the whole world understand by this, mental, not bodily, presence? Would not a contrary construction lead to absurdity, and defeat the plain intention of the statute?'
I take the view that if live streaming video technology enables the remote witnesses, to 'see and be conscious of the act done, and be able to prove it by their own evidence' (per Sir Fust) then prima facie it complies with the act. Multiple foreign common law jurisdictions have already legislated to sanction remotely executed wills.
I shared my research and confessed all to the Ministry of Justice recently. Instead of a rebuke I received a gracious and encouraging reply that comes as close to accepting my analysis as I could hope for. However, I was reminded that as there is no clear precedent either way the uncertainty remains. The letter indicates that the government is considering retrospective legislation in this context and plans to make an announcement 'very soon'.
The Law Society has declined to amend its guidance insisting on a witness' physical presence. It claims that the Law Commission Making a Will report from 2017 asserts this. That is only partially accurate. The Law Commission's pre Covid19 view (at 6.32) was '… it is unlikely that the current law governing witnessing extends to witnessing via videoconferencing because "presence" has been held to involve physical presence (In the goods of Chalcraft  P 222)'. Elsewhere (at 5.20) the report cites Hudson to the same effect. The awkward truth of the matter is that both of these decisions establish no such thing: the testamentary witnesses were physically present in both instances.
Given the present uncertainty, it is vital that the government expedites its legislative proposals. The rule of law insists on legal certainty. My hope is the government will adopt the sound precedent set, months ago, in several other common law jurisdictions of making the management and supervision of remote will executions a reserved activity.
Dr Nicholas Bevan, solicitor and senior associate at Solicitors Title LLP