www.newlawjournal.co.uk | 5 June 2020 WILLS & PROBATE LEGAL UPDATE 9 © iStockphoto/Dean Mitchell Where there’s a will; there’s a way Is it a misconception that a witness needs to be physically present at a will signing? Dr Nicholas Bevan reports IN BRIEF originated in the Law Commission’s 2017 ago and inserted by way of substitution into f The Wills Act 1837 does not require a consultation report, Making a will, which, the 1837 Act by s 17 of the Administration physical ‘presence’. at para 5.26 declares: ‘A witness must be of Justice Act 1982 (the 1982 Act). It f Live-streaming online video conferencing is mentally as well as physically present and now provides: a valid ‘presence’. therefore cannot be asleep, intoxicated or of f Video wills are here to stay. unsound mind.’ This assertion is supported ‘17 Relaxation of formal requirements for by a footnote citing Hudson v Parker [1844] 1 making wills. ife is short and we all take an Rob Eccl 1. However, as we will see from the The following section shall be substituted occasional shortcut now and then. excerpts quoted below, Hudson’s ratio does for section 9 of the Wills Act 1837— In our private lives we do not hesitate not support this proposition. Unfortunately, ‘Section 9 Signing and attestation of wills Lto rely on the trusty sat-nav instead of such is the high esteem in which the Law No will shall be valid unless— undertaking the map-reading for ourselves. Commission is rightly held, that this (a) it is in writing, and signed by the Some authors might even resort to a tired unfortunate statement has been given a testator, or by some other person in his cliché for their article’s headline! weight and authority it does not merit. presence and by his direction; and As busy professionals, most of us will In the UK, the Law Society appears to (b) it appears that the testator intended occasionally have substituted a case header have adopted this view uncritically. It has by his signature to give effect to for the judgment we know we should have been lobbying the government to introduce the will; and read. Sometimes we adopt the opinion of a emergency legislation to relax s 9’s formalities (c) the signature is made or trusted commentator, particularly when it to spare the testator and witnesses the risk of acknowledged by the testator in the is plausible. contracting the coronavirus. Elsewhere in the presence of two or more witnesses However, this kind of referential common law world, where s 9 of the 1837 Act present at the same time; and behaviour can lead us badly astray. Even the has been incorporated into national law with (d) each witness either— most esteemed institutions and authorities, little altered, several governments have been (i) attests and signs the will; or just like our sat-navs, can have a bad day. panicked into passing emergency COVID-19 (ii) acknowledges his signature, in The present controversy over whether it laws that expressly sanction the witnessing of the presence of the testator (but not is possible to execute a valid will over the wills online. necessarily in the presence of any internet using remote video technology, is a However, speaking for the UK at least, if other witness), prime example of the blind leading the blind. one reads s 9 carefully, and in the light of the There is a near uniform consensus within long line of consistent rulings interpreting it, but no form of attestation shall be the legal profession that s 9 of the Wills Act one discovers that statutory intervention is necessary.’ [emphasis added] 1837 (the 1837 Act) does not permit the not required. execution of wills online and that legislation The words used here to prescribe the is required to address this shortcoming. The statutory provisions: ancient & simultaneous ‘presence’ of the testator Both views are misconceived because they modern and the witnesses are, in all material are based on an assumption that is a non Parliament has regulated will writing for respects, identical in both the 1837 and 1982 sequitur. They both assume (mistakenly) at least 343 years. Section 5 of the Statute versions of s 9. that s 9 requires the testamentary witnesses of Frauds 1677 introduced the progenitor to be physically present when a will is either of what is now s 9 of the 1837 Act and the Prevention of fraud signed or acknowledged by the testator; requirement that the testator’s signature In Re Fuld deceased (No 3) [1968] P 675, [1965] when it clearly does not. should be made or acknowledged in the 3 All ER 776 Mr Justice Scarman observed of ‘presence’ of witnesses. s 9 that the legal requirement is a safeguard in Law Commission report The most recent iteration is something of will cases ‘against fraud upon the dead’. This misconception appears to have a cuckoo. It was introduced only 38 years This is why s 9 of the 1837 Act insists 10 LEGAL UPDATE WILLS & PROBATE 5 June 2020 | www.newlawjournal.co.uk upon the strict adherence to its formalities. examination of what is meant by ‘presence’. Loquendumestutvulgus, says Lord Coke These are set as a prerequisite of validity Given the Law Commission’s misattribution (4 Eep. 47). If in the course of common and no deviation is tolerated. and the intrinsic clarity of his statement, it conversation a person wishes to support the is worth reviewing this in some detail here. truth of a statement, does he not say—“Such Broadly termed but not ambiguous In Hudson the testator acknowledged a a one was present, and he will vouch for the For all its strictly prescribed formalities, s document in his possession as his will, in the truth?” if a statement be questioned, does 9 does not specify the means by which the physical presence of two witnesses, whom not a person say, “I was present and can testamentary witnesses should manifest he then invited to sign as witnesses, without attest its correctness,” and does not the their simultaneous ‘presence’, any more allowing them to see any of the writing, whole world understand by this, mental, than it prescribes the nature of the ‘writing’ including his own signature. not bodily, presence? Would not a or what type of document should be used. Sir Jenner-Fust held that the will did contrary construction lead to absurdity, The policy enabled the 19th Century version not conform with s 9 of the Act, because, and defeat the plain intention of the of s 9 to accommodate a wide range of in his words: ‘how is it possible that the statute?’ [emphasis added] technical innovations over the 148 years witnesses should swear that any signature that span 1837 and 1982. was acknowledged unless they saw it?’ In In Re Killick’s Goods [1864] 3 Sw&Tr For example, it is clear from the incidental explaining his decision he said: 578) Sir J P Wild offered the following references to lithographed wills in Manning observations: ‘Great latitude ought to be given v Purcell (1855) 7 De G M & G 55 and In the ‘The words of which we now wish to the meaning of the word “presence” used in Goods of Wotton [1874-80] All ER Rep 240 to understand the meaning are the the 9th section of the Wills Act, … I think such that pre-printed wills were accepted by the following:—“Such signature shall be an act as this cannot be said to be done by one courts as valid from the mid-nineteenth made or acknowledged by the testator person in the presence of another, unless at century, at least. in the presence of two or more witnesses the time each is aware of the other’s presence.’ It is also very unlikely that the concept of a present at the same time”. .... Accordingly s 9’s use of ‘presence’ has a typewritten will would have been envisaged strictly functional meaning in just the same by the Parliamentary draftsmen in 1837 but way that ‘writing’ has within the same it is within living memory that pre-printed Given that video provision. and typewritten wills were in ubiquitous and evidence can be unchallenged use long before the 1982 Act. “ Common usage & common sense Similarly, no one appears to have questioned now be adduced If a valid will can be written on an eggshell the widespread use of word processed wills Re Barnes Goods, Hodson v Barnes (1926) 43 from the mid to late 1970s onwards. Yet, from in criminal & civil TLR 71 or scribbled in bad Ukrainian on a a literal perspective, printing, typing and trials it seems oddly bedroom wall Re Slavinskyj’s Estate (1989) word processing are not what ordinary people 53 SASR 221, and if an unlettered mark Re would consider to be ‘writing’. anachronistic to Kieran [1933] IR 222 can be accepted as a trenchantly insist valid signature, then it is unclear what legal The literal meaning of ‘presence’ principle or rationale prevents testamentary The Oxford English Dictionary offers that this 1982 Act witnesses from manifesting their virtual several definitions of ‘presence’. The most requires nothing less ‘presence’ online using live-streamed video obvious candidate, in this context, has a technology, provided, of course, this is topographical connotation: ‘of being in the than a close physical undertaken in a manner that is consistent with place in question.’ The modern 1982 version attendance” s 9, the case law and its legislative objective. of s 9, in keeping with its predecessors, Given that video evidence can be now be does not specify whether a remote or close adduced in criminal and civil trials it seems presence is required.