The law governing the creation of wills must always strike a balance between two competing concerns. On the one hand, it must give scope to people who are in unusual circumstances, in extremis, or even without recourse to paper (a Canadian court recently upheld a will scribbled on McDonald's napkin while the testator suffered a heart attack); on the other hand, it must create safeguards so that people faced with important decisions as to how structure their affairs and care for their loved ones - people who may be vulnerable or at a difficult time in their lives - are able to express their genuine wishes with forethought and without undue pressure.
In this time of unprecedented change, safeguards morph into barriers. To make a valid will, a person must find two independent witnesses who are not beneficiaries under the will to witness the signature. Both of these witnesses must then sign the will in the testator's presence and in the presence of each other. As social distancing has become important for all, and isolation paramount for some, having two independent witnesses present may be impossible. At the same time the ability to create or update a will has become tragically urgent. Those who fall ill at this time may need to express their last wishes while kept in isolation. Many more want the certainty and comfort that estate planning can bring at a time when a great deal of our lives are beyond our control. As a consequence it is right that the Ministry of Justice looks to temporary measures to relax legal requirements.
As practitioners we are continually looking for ways to create wills for our clients in line with rapidly updated guidance. However, there will always be cases where such measures available to us mean a will cannot be made, or made within the time frame required.
Allowing witnessing by video link, as mentioned in this article, presents an obvious and practical solution, in which witnesses might watch a livestream of the testator signing via Skype, Zoom, WhatsApp or Facebook. The witnesses would then sign the original will some time later to attest what they have seen. We hope that the Ministry of Justice gives serious thought to permitting this helpful possibility. However, this is not a perfect solution, and acknowledging this will help testators, witnesses and practitioners to be aware of the limitations of this, and to be alert to the additional risks of exploitation which come when safeguards are changed. What if there is a person out of frame, unseen by the witness, putting pressure on the testator to sign? What if the testator is elderly and not technologically confident, otherwise unable to use a video link, or does not have the devices, software and internet capacity to support this? Or what if the testator or the witnesses live somewhere remote, where the postal system is liable to halt so the original will cannot be signed by the witnesses? In these cases, video witnessing fails those who most need the rules to be adapted.
There are other solutions the Law Society and Ministry of Justice might consider: allowing a will to be made with just one witness; allowing for witnesses who may not be independent or who are given gifts in the will; or for witnesses who are standing at a distance (for example neighbours looking through a window), or witnessing via video link, to sign a duplicate of the will. There may also be even more radical ideas, such as giving testamentary weight to wishes expressed by the isolated critically ill to medical staff, but these should be treated with extreme caution. We ought to welcome amendments brought in by the Ministry of Justice as sensible, if not ideal, amendments to ensure the law is adapting for those who need it most.
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