South West Law Firm First to Execute a Remote Will
On 1st May Solicitors Title set a new and important legal precedent. We believe that we have become the first law firm in the United Kingdom to prepare and execute a will electronically, in full conformity with section 9 of the Wills Act 1837. Our newly devised protocols protect our clients against any risk of exposure to Corvid 19 during the entire process: whether directly from the physical proximity of witnesses or indirectly from contact with contaminated surfaces.
On Monday 27 April, Solicitors Title was consulted by a self-isolating client who wanted to know whether it would be possible to sign and witness his will in complete safety and, at the same time, to avoid the indiscrete rigmarole and inconvenience of ‘drive-by’ and ‘through-window’ witnessing practiced by some enterprising law firms.
The uniformly-held consensus of legal opinion has been that section 9 of the Wills Act 1837 requires two testamentary witnesses to be physically present when a testator signs a will, for it to have any legal effect. This belief appears to have originated in a casual observation made by the Law Commission in its 2017 consultation report, Making a will, at paragraph 5.26. This view is shared by the Law Society who only last month attempted to persuade the Government to introduce urgent legislation to relax the formalities required for a valid will for testators who are particularly vulnerable to Corvid 19.
Our independent research reveals this orthodoxy is based on a mistaken assumption.
Our careful analysis of section 9 Wills Act 1837 reveals that whilst the Act does indeed require that two witnesses are ‘present’ when a will is signed, it does not stipulate a physical presence. Furthermore, a consistent line of well-established case authorities clearly indicate that the physical proximity of witnesses is merely of incidental relevance: the essential requirement here is that the witnesses’ presence must provide a clear ‘line of sight’ that enables the witness to see the testator sign the will or acknowledge the signature as his or her own.
We were able to execute our client’s will, using live-streaming video technology in the presence of two online witnesses on Friday 1 May 2020. This was achieved within less than a working day of the client approving the draft will and in complete safety and absolute privacy.
We are proud to have transformed the way wills will be prepared and executed in the future. Our ground breaking research has also enabled us to develop a new and exacting will signing protocol that sets a new high benchmark of conformity with section 9 of the Wills Act 1837. This provides an enhanced level of protection from fraud and undue influence. The entire procedure will, for the first time, be recorded live as a matter of routine. This is likely to discourage speculative legal challenges based on lack of due process or capacity.
Our new live streamed will writing procedure is so meticulous, discrete and convenient that we expect it to be adopted as standard practice.
Nicholas Bevan, who devised and supervised this importance advance in will writing and estate planning services, has an article in this week’s New Law Journal, in which he explains the legal basis for validating ‘video wills’. Solicitors Title are confident that where online wills are executed under its unique remote execution protocol, they will be less vulnerable to opportunistic legal challenges than conventionally executed wills, because a video recording of the entire proceedings is routinely made and retained for future reference.
The entire procedure will, for the first time, be recorded live as a matter of routine. This is likely to discourage speculative legal challenges based on a lack of due process or capacity.
In light of the confusion around this issue and given the importance of clarity, now more than ever in light of the current coronavirus pandemic, Solicitors Title has nevertheless written to Alex Chalk MP, at the Ministry of Justice, seeking Parliamentary assistance in declaring the Remote Witnessing of Wills to be valid and an accepted modern interpretation of the law.
Nicholas Bevan is a senior solicitor who recently joined South West law firm Solicitors Title – Nick’s profile can be viewed within Who We Are