In Part 1 my de Lorean took us back to the 18th century. This time we need only journey back a few weeks. To the start of lockdown, to be precise, although that does at times seem like a few centuries ago. My first article on this topic https://viewpoints.carbonlawpartners.com/post/102g4wj/back-to-the-future-part-1 suggested that a Will executed and witnessed via live video, with the correct precautions, could arguably be valid even without legislative changes to the Wills Act 1837. I was quietly hoping that someone might accept this challenge in real life, and as recently reported in Legal Futures and elsewhere, my fellow Association of Contentious Trust and Probate Specialists member, Amanda Noyce of Royds Withy King did just that. I spoke with Amanda last week to whom I am grateful for the further background.
A wealthy private client who was in isolation and physically frail had not made a Will before and it was feared he might die intestate. The client was tech-savvy and no questions arose on mental capacity. Instructions were taken by the solicitor via WhatsApp video and a draft Will sent for approval by email. An interesting feature of the case was that the testator's physical condition at the time rendered him unable to sign the Will himself. Execution and witnessing also took place via WhatsApp video which enabled the solicitor first to check that no other person was in the room with the testator exerting any influence on him, and then to run through the terms of the Will using open questions to check his understanding and approval of it. The solicitor's wife acted as the second witness and both visually witnessed the testator giving instructions to the solicitor to sign the Will on his behalf. The solicitor did so and then both he and his wife added their signatures to the Will as attesting witnesses. The attestation clause was the standard clause for use where the testator has directed someone else to sign on his behalf, but was otherwise unchanged. The whole process was also recorded using WhatsApp and careful attendance notes made. Appropriate advice was given to the effect that the Will might not be formally valid but that given the urgency of the situation this was the best that could be done immediately, with a strong recommendation to re-execute an identical Will with witnesses physically present as soon as that were possible. Happily the testator recovered sufficiently for this to be done a few weeks later.
So a test case here is unlikely, but I see no reason in theory why a judge could not be persuaded to grant probate of a Will which was made in the visual, but not physical, presence of the two witnesses, relying on the existing caselaw notably Brown v Skirrow  P 3 as authority. In that case a witness was physically present but not in a position to see the testator sign and so the Will was held to be invalid. Physical presence on its own does not therefore guarantee validity. The Act does not of course define the meaning of "in the presence of", but subsequent caselaw refers to the critical requirement being visual presence, so that for example a blind person could not validly witness the signature. More recently in Couser v Couser  3 All ER 256, the court held that for valid acknowledgment by a witness of the witness's signature there had to have been visual contact between the testator and the witnesses.
As I predicted in Part 1 there has been no emergency legislation enacted to enable the making of video Wills during lockdown. Ordinarily, changes to the law in this area often take years to be considered and reach Parliament. I imagine we will see some changes eventually when the dust has settled and the Law Commission has consulted. My best guess is that the Australian model will be adopted, so that the courts will have a discretionary power to grant probate if the Will fails on a technicality in execution, but appears to represent the testator's wishes. Time to take the de Lorean for a quick spin towards 2037 and see whether 200 years later a new Wills Act has caught up with the technology.
“There will probably have to be a test case after lockdown eases to assess whether the judiciary believes that ‘presence’ can mean ‘via video link’.”