The problem: section 9 of the Wills Act 1837 (as amended in 1982) says that
No will shall be valid unless—
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.
Courts are likely to interpret the words in bold as meaning that the person making the will must sign or acknowledge in the physical presence of the two witnesses. But social distancing during the coronavirus pandemic has made that difficult.
The chosen solution: that the witnesses should be able to watch the will being signed using Zoom, Skype or some other video-conferencing technology.
The rejected proposals: that the will-maker should be able to sign remotely or use an electronic signature (seen as carrying too great a risk of fraud or undue influence).
The legislative amendment: section 9 of the Wills Act 1837 becomes section 9(1). A new subsection is added, which says:
(2) For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January 2022, “presence” includes presence by means of videoconference or other visual transmission.
The legislative vehicle: not an act of parliament, as you might expect.
That’s because section 8 of the Electronic Communications Act 2000 allows a secretary of state to
modify the provisions of any enactment or subordinate legislation … in such manner as he may think fit for the purpose of authorising or facilitating the use of electronic communications or electronic storage (instead of other forms of communication or storage) …
So that is what the justice secretary Robert Buckland (pictured) has done by making the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, which comes into force in England and Wales towards the end of this month.
Bit late, isn’t it? Not at all: it will retrospectively legalise wills witnessed electronically since the end of January.
What has Henry VIII got to do with this? The Statute of Proclamations 1539 allowed the king to rule by royal proclamation (a bit like an executive order, I suppose). So a Henry VIII clause in a bill is one that that allows ministers to amend or repeal provisions in an act of parliament using secondary legislation.
And what do we think of those? Not a lot, usually. But on this occasion there was informal consultation with lawyers and others. This handy provision seems to be a simple and effective way of resolving the problem — in the short term, at least.