Our Ref: NCB/MoJ/Chalk Date: 3 June 2020 The Rt Hon Mr Alex Chalk MP Parliamentary Secretary of State The Ministry of Justice 102 Petty France London SW1H 9AJ United Kingdom Dear Minister Video Wills I am writing to extol the benefits of a new and completely coronavirus risk-free method of executing wills online, using live-streaming video technology and to ask for your support. This ‘video wills’ service is accessible to members of the public who have a good internet connection and basic IT skills. My research reveals that this process is capable of fully conforming to the legal formalities for a valid will as prescribed by section 9 of the Wills Act 1837, as well as being convenient and safe. However, your early intervention is needed. Unless this new approach receives some form of official sanction, the legal profession is unlikely to make proper use of it. Its hesitancy is primarily attributable to an ingrained aversion against any innovation concerning the execution of a will. This is partly because strict compliance with the statutory formalities is set as a precondition of a will’s validity and partly attributable to the extensive time lag (often of many years duration) between the act of executing of a will and any judicial decision (approving or disapproving its conformity with the 1837 Act). Practitioners are worried about the risk of creating a toxic legacy of invalid wills. No one doubts the vital contribution that online live-streaming video technology has already made in the national effort to halt the spread of the coronavirus. Nor has anyone, to my knowledge, asserted that video wills are inherently less effective, in terms of witnessing or fraud prevention, than the conventional procedures we are used to. Indeed, as I explain below, the opposite is true: video wills provide enhanced safeguards against fraud. The principal objection seems to be simply this: that this modern approach has yet to be sanctioned by a court. Accordingly, I fear that without some form of official guidance and encouragement, the public will continue to be denied the benefits of this innovative, convenient and completely coronavirus-free procedure for witnessing a will during this pandemic.

In my opinion, a senior High Court judge should be invited to review the issue of video wills and to issue a practice direction to ensure they are undertaken competently. Legislation is not necessary. Video wills disturb no significant point of law or principle. Video wills As indicated above, the formalities for a valid will are set out in section 9 of the 1837 Act. Suffice it to say, the will needs to be in writing and signed by the testator (or acknowledged) in the ‘presence’ of two witnesses. The key factor here is that section 9 does not stipulate a physical ‘presence’; merely that the witnesses need to be present when the testator signs or acknowledges his or her signature. I have researched the case authorities, extending back over two hundred years, and I find that their rulings are compatible with video wills. I explain this in some detail in the accompanying paper ‘Why Video Witnessing Is Valid’. The single abiding principle to be derived from the case law interpreting what is meant in section 9 by a witness’ ‘presence’ is that the testator and the witnesses must have a clear line of sight of one another throughout the proceedings. Live-streaming video technology not only enables this but it enhances the process of witnessing - by recording the entire procedure for posterity. My paper demonstrates how the Judiciary has consistently applied its discretion in the past to approve novel ways of complying with the statutory formalities for executing a will. Indeed, the common law has a distinguished track record of adapting to changes in society. Live-streaming video technology is merely another step in a long journey. The fundamental problem here lies not with the law but the lawyers. Video wills are already in use I can attest to having supervised and witnessed the execution of a will online already and in full conformity with the 1837 Act. On Monday 27 April, I was consulted by a client who wanted to make a will without breaching the Government’s lockdown or otherwise risking exposure to the coronavirus: whether from myself, a witness, or indirectly from a contaminated item. The client lives in self-isolation 150 miles away. My initial reservations were dispelled after I researched the issue and studied the judgments carefully. After that, it was a relatively simple task to devise a new wills execution protocol that accommodates this new technology and to draft a new attestation clause to reflect these modifications. After explaining this research to the firm’s partners, my colleagues and I were able to execute this will online on Friday 1 May. The entire process, from ascertaining the client’s testamentary wishes to finally executing and witnessing the will was undertaken within a working week; the execution itself taking place within 24 hours of the final draft being approved in pdf format. The live streaming video technology enabled the client to direct me to sign the engrossed copy of his will in his name, from the safety and seclusion of his home. Both the client’s acknowledgement of his signature and our attestation of this were witnessed reciprocally and instantaneously by all concerned. The entire proceedings were recorded.

Royds Withy King LLP solicitors have recently announced that they have witnessed the execution of a will online for a seriously ill client, using a WhatsApp video call. Amanda Noyce, a partner, expressed concerns about the conformity of this procedure in the light of the continuing uncertainty over what is mean by ‘presence’ which raises the possibility of a legal challenge after the testator has died. This serves to illustrate the urgent need for official guidance. Why video wills need to be encouraged I list the most obvious advantages of remotely witnessing and executing wills online using live-streaming video technology:

• First and foremost, this practice avoids the slightest risk of exposure to the coronavirus;

• Properly managed, online witnessing significantly enhances section 9’s statutory safeguards against fraud, especially compared to self-help products and online automated will writing services. My protocol requires practitioners to undertake identity checks and to conduct a face-to-face online consultation that enables them to take an informed view of the client’s state of mind, demeanor and true testamentary wishes;

• My protocol includes a scoping video survey of the client’s immediate surroundings, undertaken at the commencement of the proceedings, which reduces the likelihood of undue influence to a minimum;

• Live-streaming video technology enables the entire proceedings to be recorded in real time. This provides (for the first time) direct first-hand evidence of everything that was seen and heard by the participants. This will discourage speculative legal challenges based on unfounded allegations of non-conformity with due process, undue influence or lack of mental capacity;

• Supervising the execution of wills this way also protects testators from inadvertently disentitling a potential beneficiary by asking them to act as a witness or otherwise invalidating the will by failing to conform with the statutory formalities;

• If the online execution is managed under my protocol a legal presumption of due process is triggered;

• Online witnessing and execution provides members of the public with a more convenient and affordable means of accessing bespoke succession and estate planning; will writing and execution services; delivered in privacy, direct to their homes or offices;

• The procedure is environmentally friendly as it removes the need for any of the participants to travel. This is achieved by deploying the law firm’s administrative staff online to serve as independent witnesses and by assigning an experienced solicitor to manage the online execution of the will.

• Finally, and by no means least, the online execution of wills avoids the indiscrete and costly rigmarole involved with ‘through-the-window’ wills witnessing and other work-arounds that have been resorted to during this pandemic; which do not provide the guarantee of immunity from indirect exposure to the coronavirus that video wills do.

On a broader point, online live-streaming video technology will enable our profession to bring its private client services in this field into a much closer alignment with rapidly evolving consumer expectations. Allied to this, the reasonable and rational choice of a members of the public, who either choose or need to execute their will in seclusion, should be respected and facilitated, provided the procedures followed can be reconciled the statutory formalities and meet the legislative objective of fraud prevention. Why practice standards are needed I intend to publish my research shortly and I will also be actively promoting the adoption of this practice in legal journals and in the national press. I anticipate that many legal professionals will be slow to exploit video wills, for the reasons already given, whereas some unregulated will writing businesses may feel emboldened to seize the opportunity to steal another march on the profession. There is nothing intrinsically wrong in that but we need to ensure that this beneficial and coronavirus-safe innovation starts out on out a firm footing. I am concerned that if the live-streamed witnessing of wills is not regulated properly and from the outset, then the Court Service could face a wave of contested probate actions: as each and every diverse online approach is tested through the courts. Suitable guidance needs to be formulated before matters get out of hand. From a constitutional perspective, one cannot impose good practice standards retrospectively. Because further legislation is unnecessary on this discrete issue, there should be no need to refer this back to the Law Commission, with the attendant delay that would result. In my respectful opinion, what is needed is for a senior Family or Chancery Division judge, to review the issues and publish a practice direction. I would be happy to provide assistance to that end. This could be achieved in a matter of weeks, which is what the present pandemic requires. Incidentally, I would like to congratulate you for declining the misguided calls to relax the statutory testamentary safeguards or otherwise to extend privileged wills status to the elderly and those most vulnerable to Covid 19. In my opinion, this would have been a recipe for disaster. Whilst I share the Law Commission’s views that reform is this area is needed, no legislation is required to sanction the valid execution of wills using online video technology in conformity with section 9 of the 1837 Act. Please will you indicate at your earliest convenience what steps your department will take to address this issue and roughly within what timeframe. Yours sincerely

Dr Nicholas Bevan Senior Associate SOLICITORS TITLE LLP Direct E mail:nicholas.bevan@solicitorstitle.co.uk