Witnessing Of A Will – Even Through A Car Window (Baker And Spiers v Hewston (2023)
A Will is a very important legal document and must be prepared, executed and witnessed in a certain way to be valid. It is very easy to fall foul of the rules and by the time you realise the mistake it may be too late.
The starting point under section 9 of the Wills Act 1837 is that:
“No will shall be valid unless-
(a) It is in writing, and signed by the testator, or by some other person in his presence
and by his direction; and
(b) It appears that the testator intended by his signature to give effect to the will; and
(c) The signature is made or acknowledged by the testator in the presence of two or
more witnesses present at the same time; and
(d) Each witness either –
(i) attests and signs the will; or
(ii) 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.”
On 25 July 2020, the government issued guidance confirming that they would be making changes to legalise the remote witnessing of wills following the problems arising from COVID 19.
New legalisation was brought in September to effect these changes with retrospective effect from 31 January 2020. The changes were initially in place until 31 January 2022 but on 12 January 2022 this was extended until 31 January 2024.
They stressed however that “the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so.”
The statutory instrument amended the Wills Act 1837 to stipulate that where wills must be signed in the ‘presence’ of at least two witnesses, their presence can be either physical or virtual.
The technology used must however be fit for purpose – you must be able to see and hear what is happening at the time.
Witnessing pre-recorded videos will not be permissible – the witnesses must see the will being signed in real-time.
If possible, the whole video-signing and witnessing process should be recorded and the recording retained. This is especially useful if there was a challenge to the validity of the will later on.
The Government has decided not to allow electronic signatures as part of this temporary legislation due to the risks of undue influence or fraud against the person making the will.
A Will has to be witnessed in the presence of two independent witnesses. They cannot be the spouse/civil partner or a beneficiary of the Will (or spouse/civil partner of the beneficiary), but an executor can be a witness. Section 15 of the Wills Act 1837 makes clear that if a beneficiary (or their spouse/civil partner) witnesses a will then they will lose their entitlement under the will.
The norm is that the solicitor preparing the will and another person from the firm will be witnesses to the will.
Both the witnesses must be present at the same time when the will is executed by the testator.
The witnesses do not need to read or know about the contents of the will itself.
You should try and avoid using the following people as your witnesses:
- Elderly (in case they die and cannot give evidence if the will is challenged)
- Child (in case they do not understand and/or cannot give credible evidence if the will is challenged)
- Blind (as they cannot see/witness the execution)
In conjunction with the government guidance issued on 25 July 2020, the Law Society has also produced a guide for practitioners (last updated on 6 June 2023).
They have given an example of how an attestation clause will need to be amended if a will has been witnessed electronically:
We, the undersigned testator and the undersigned witnesses, respectively, whose names are signed to the attached or foregoing instrument declare:
(1) that the testator executed the instrument as the testator’s will;
(2) that, [on x date], in the presence [by video conference] of both witnesses, the testator [signed the instrument]/[ acknowledged the signature already made on the instrument]/[ the instrument was signed by [X/another] in the physical presence of the testator as directed by the testator];
(3) that, to the best of our knowledge and belief, the testator executed the will as a free and voluntary act for the purposes expressed in it;
(4) that, to the best of the witnesses’ knowledge and belief, the testator was of sound mind when the will was executed.
Normally with physical witnessing, the testator and the witnesses are in the same room.
However, it was recognised that this was not always possible during COVID-19 with the imposition of self-isolation or social distancing.
The requirement in such cases is that the testator and the witnesses each have a clear line of sight of each other. The following are some examples of this in practise.
- witnessing through a window or open door of a house or a vehicle
- witnessing from a corridor or adjacent room into a room with the door open
- witnessing outdoors from a short distance, for example in a garden
This is what happened in the case of Baker and Spiers v Hewston (2023).
This was primarily a case about whether Stanley (a 90 year old man with dementia) had capacity in making a number of wills (6) from 2010 to 2020 “with family beneficiaries shifting in and out of inheritance”.
Stanley was survived:
- on the one hand by three children (including Jennifer who was the first claimant and one of the executors) and eight grandchildren;
- and on the other his partner Kathleen and their daughter Diane (the defendant)
Stanley’s last will of 23 May 2020 left his estate to all his family save Martin (his son with his estranged wife Agnes).
Diane challenged all wills made prior to 2014 which would have meant according to his will of 2010 he would have left his half share in the jointly owned bungalow with Kathleen to Diane and Martin.
Martin did not participate in the proceedings and by the time of the trial compromise had been reached with Diane.
The judge found that Stanley had capacity to execute his wills in 2010, 2017, 2018 and the final one in 2020.
In the final paragraph he summarised how the will had been validly witnessed at a distance:
“… Jennifer arranged for two friends of hers who knew Stanley, Mr Graham and Mr Rainsford, to come to the driveway of Stanley’s house. He stayed in the car and they saw him sign the will through the window, which he then passed to then and they each witnessed. This was an ingenious arrangement which predated the amendment to the Wills Act permitting ‘remote attestation’. In any event, it was a valid execution. Whilst the will was not read over to Stanley, Mr Penn sent it to him with a clear client care letter and Stanley signed the acknowledgement slip and Jennifer made minor amendments to it to correct her address as executor. Stanley was plainly very familiar and happy with it – after all, he had plenty of practice with wills. As Mr Aldis says, ‘Knowledge and Approval’ of the May 2020 will is clearly proved, as is execution and capacity as I have said. It follows that Stanley’s final will on 23rd May 2020 – only three months before his death on 5th August 2020 – was valid, it superseded all previous wills and I admit it to Probate.”
Whilst the law does need to move with the times and this was accelerated during COVID 19, the potential for abuse cannot be emphasised enough. The advice from the government remains that where people can make wills in the conventional way they should continue to do so.
Time will tell whether satellite litigation arises from wills which were witnessed remotely as a result of COVID-19