2020 saw many changes to our way of life, but an important one for many (sadly) was a renewed urgency to make a will. In a time of social distancing, however, the big question was how to ensure it was executed validly in the presence of two witnesses. There was much debate between lawyers on how best to do this, and whether a will signing could be validly witnessed over a video link.
This debate was eventually put to bed in the summer of 2020, when the government introduced legislation permitting remote witnessing for a temporary period (which has been extended to 31 January 2024). In guidance, it also confirmed that other methods of executing a will involving a clear line of sight between testator and witnesses, including through a window, would be valid under the existing law.
Until that announcement, however, a case from the 18th century, Casson v. Dade (1781) was frequently cited by lawyers discussing the options for execution - in this, a testatrix, Honora Jenkins, was deemed to have been able to see her witnesses attest her signature through her carriage window, and accordingly the judge determined her will was validly executed. As a result, watching people signing wills through windows, whether of cars or otherwise, became a popular method of execution during Covid, even before the government made its view clear.
Nevertheless, there was some debate as to whether such methods of execution might be open to challenge in the future, and a recent decision in the Birmingham High Court has provided some welcome clarity. In this case, the testator, Stanley, signed his will in his car while his witnesses watched him through the window. He then passed the will to them, and they witnessed it in his view.
The judge commented that: "This was an ingenious arrangement which predated the amendment to the Wills Act permitting "remote attestation". In any event, it was a valid execution."
Testamentary capacity
In addition to giving certainty on the issue of remote witnessing, the judgement is also interesting because it includes detailed consideration of the interrelationship between the common law test of testamentary capacity in Banks v Goodfellow (1870), and the statutory test of capacity in the Mental Capacity Act 2005. The judge, Tindal HJ, sits in both the Court of Protection and the Chancery Division, and accordingly, looked at this issue. He took the view that, while the two tests are not identical, they are "broadly consistent and one can 'accommodate' the other, depending on which applies."
Stanley was a prolific will writer, who made (or had drafted) no fewer than eight wills between 2009 and his death in 2020, each of which disinherited or favoured different members of his extended family. Shortly prior to the first of these, Stanley was diagnosed with dementia, and accordingly his capacity to execute all of them required careful consideration. Having reviewed the law thoroughly, and the evidence of Stanley's state of mind on each occasion, while the judge had some doubts about Stanley's capacity when he executed his 2009 will, he concluded that he did have the required level of capacity to execute his subsequent wills. This included his final will in March 2020, and, of course, the judge also found that it had been validly signed and witnessed through his car window.
As Stanley's younger son, Martin, who was one of those disinherited by the final will, chose not to take part in the proceedings, it is possible that the decision may be appealed. If this case does go further, it will be interesting to see whether this includes any further development or comment on the judge's analysis of the law on capacity.
Baker & Anor v Hewston [2023] EWHC 1145 (Ch)
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