In the first known case since the COVID pandemic the High Court has upheld the validity of a will witnessed through a car window.
Under Section 9 of the Wills Act 1837 (“the Act”) no will is valid unless:
In writing and signed by the testator or by some other person in his presence and by his direction;
It appears that the testator intended by his signature to give effect to the will;
The signature is made or acknowledged by the testator in his presence of two or more witnesses present at the time;
Each witness either:
o Attests and signs the will; or
o Acknowledges his signature, in the presence of the testator (but not necessarily in the presence of the other witness), but no form of attestation shall be necessary.
Amendment of the law
As a result of the pandemic, testators had to find inventive ways to ensure that wills were validly executed in accordance with the Act. Whilst recognising the potential difficulties that the pandemic caused, the Government did take steps to temporarily amend the law to allow wills to be witnessed remotely, the definition of “presence” being amended to include “presence by means of videoconference or other visual transmission”. This amendment was introduced on 28 September 2020 and is currently due to expire at the end of January 2024.
The High Court case
The amendment to the law did not, however, come soon enough for the testator, known only as Stanley, in the case which the High Court has just considered as his will was executed in the early days of the pandemic on 23 May 2020.
The May 2020 will was the 6th will which Stanley had made in a decade with members of his family shifting in and out of inheritance.
When it came to the execution of his latest will, his daughter, Jennifer had arranged for two of his friends to come to the driveway of his home. Whilst Stanley remained in the car but within eyesight of the witnesses, he signed the will and then passed it to them for each of them to witness.
Stanley died some three months later and one of the family members sought to challenge the validity of the will on the basis that it had not been validly executed in accordance with the Act as well as on grounds that Stanley, how had been diagnosed with dementia in 2009, did not have testamentary capacity to execute the same.
The judge held that Stanley did have testamentary capacity to execute the will. On the grounds of whether the will was validly executed in accordance with the Act, the judge commented that the arrangement for execution of the will “was an ingenious arrangement which predated the amendment to the Wills Act permitting “remote attestation”. In any event, it was a valid execution”. He added that whilst his solicitor had not read over the will to Stanley as would normally be the case, he had sent him a clear client care letter and Stanley had signed and acknowledged the same. Stanley, said the judge, was “plainly very familiar and happy with it – after all, he had plenty of practice with wills”.
Accordingly, he held that the will was valid and admitted it to probate for administration.
To ensure compliance with the Act it remains good practice wherever possible to ensure that a will is executed ideally at an appointment with your lawyer or at the very least in accordance with the provisions of the Act prior to its amendment, but this case serves as a useful precedent to show that in circumstances where, by necessity, a testator had to find a different way to execute the will, the court is willing to uphold the validity of such execution.
If you are an executor or beneficiary under a testator’s will and wish to receive legal advice on a potential claim to uphold the validity of a will or conversely, to challenge the validity of a will, please contact Ally Tow in our Dispute Resolution team on 07894 512 991 or by email at [email protected]
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.