I do declare! Could a test case on remote witnessing wills be brought before death?

My last two posts have looked at the issue of will-making during the coronavirus pandemic, and the difficulties of socially distant witnessing, and some of the proposals for reform of the law of wills and the options for a temporary solution to the difficulties faced by testators during the pandemic.

In this post, I address the question of whether or not a test case on remote witnessing could be brought now by a testator who has attempted to make a will using videoconferencing technology.

What on earth does Nicholas Cage have to do with this? You’ll have to read on.

The remote witnessing debate

I concluded in my post on remote witnessing: here that until such time as we have legislation permitting remote witnessing, practitioners will need to proceed on the basis that the physical presence of a witness is required in order to comply with the requirements s. 9 of the Wills Act 1837.

In its recent COVID-19 guidance to members (published 17 April 2020), the Law Society expressed the view that remote witnessing by means of videoconferencing technology does not comply with s.9 of the Wills Act.

The Law Commission in its 2017 report on will reform also expressed the view that “presence” for the purposes of the Wills Act 1837 means physical presence:

“6.32 For a will to be valid, the testator must sign or acknowledge his or her signature in the presence of both witnesses and the witnesses must sign or acknowledge their signatures in the presence of the testator. Whether the parties are in each other’s presence is currently decided with reference to whether they are in the same room and whether there is a line of sight.25 That rule would be difficult to apply where a witness is said to have had a line of sight to the testator via an online videoconference (there has been no such case). However, it is unlikely that the current law governing witnessing extends to witnessing via videoconferencing because “presence” has been held to involve physical presence.”

Nonetheless, there are compelling arguments in favour of the view that the statutory requirement that wills, deeds and powers be executed in the “presence” of a witness should extend to the use of videoconferencing technology. Just to give a brief sketch of some of the arguments that might be deployed:

1. The case law relating to will formalities demonstrates that the courts are willing to take a flexible approach to the requirement of presence e.g.:

Shires v Glasson (1687) 2 Salkeld 688: A will attested by witnesses in a second room, visible through a broken window through which the testator could have seen them if he had chosen to look was held to be validly executed in accordance with the Statute of Frauds. The court noted that the policy objective behind the requirement for witnesses was to prevent a person “obtruding another will in the place of the true one”.

Brown v Skirrow [1902] P. 3: The testatrix signed her will in a busy shop. One witness, the grocer’s assistant, saw her sign and attested the will but the other witness, the grocer himself, was otherwise occupied at the time that the testatrix and his assistant signed the will. It was held that “presence” must mean visual presence. The will had not been properly attested even though the testatrix had acknowledged her signature to the grocer, since that acknowledgment needed to take place in the presence of both witnesses before they each attested it. Gorell Barnes J stated: “You cannot be a witness to an act that you are unconscious of; otherwise the thing might be done in a ball-room 100 feet long and with a number of people in the intervening space. In my view, at the end of the transaction, the witness should be able to say with truth, “I know that this testator or testatrix has signed this document.””

Casson v. Dade (1781) 1 Bro.C.C. 99: The will of an asthmatic testatrix was held to be valid where she had retired to her carriage but could see through the witnesses signing the will through the carriage of her window. Applied in Couser v Couser [1996] 1 W.L.R 1301, in which it was said that a valid acknowledgment of a signature under the Wills Act required that there should be at least possible visual contact. The decision has also been applied by Senior Judge Lush in In Re Clarke (19 September 2011), a case concerning the execution of a lasting power of attorney in circumstances where the donor was in one room and the witnesses in another, separated by a glass door.

2. The emphasis in the cases is on the policy objective of ensuring that the witness can say that the document in question is the true will of the testator and “presence” has been consistently held as necessitating a line of sight or visual contact. Arguably, if this objective can be achieved through a pane of glass, it can be achieved by viewing through a screen.

3. The decision cited by the Law Commission in support of the proposition that “presence” requires physical presence, In the goods of Chalcraft [1948] P 222, did not actually decide that point. The facts of Chalcraft concerned a testatrix who was on her death-bed and had recently been given a large injection of morphine. She was handed the document to sign, but did not complete her signature, writing “E Chal” instead of “E. Chalcraft.” The attesting witnesses signed and shortly afterwards she became unconscious. Court considered that the requirement that the document must be attested by the witnesses in the presence of the deceased meant not merely in her physical presence but in her mental presence. The ratio of the judgment is that a testator must be mentally present. Remote witnessing would of course have been unimaginable at the time and the decision is not authority for the proposition that physical presence is required.

4. It is a well-established principle of statutory construction that statutes are “always speaking”: Owens v Owens [2018] UKSC 41; R (Quintavalle) v Secretary of State for Health [2003] UKHL 13. The fact that current technology could not have been envisaged when the Wills Act was enacted is not necessarily a bar to interpreting s.9 as permitting witnessing by technological means.

However, there are weighty countervailing arguments. Arguably, the concept of presence has been stretch to its limit in a case such as Casson v Dade. Shires v Glasson, decided 333 years ago, emphasised the policy objective behind will formalities of preventing fraud and there is a strong argument that a cautious approach is required to testamentary formalities given that the document only takes effect when its maker is no longer here to give their own account. The statutory requirements are detailed and prescriptive. In Royal College of Nursing of the United Kingdom v Dept of Health and Social Security [1981] AC 800, Lord Wilberforce said: “the courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive”.

At the risk of stating the blindingly obvious, remote witnesses are not present in the historical and conventional sense of the word. They are somewhere else, virtually present through the medium of technology and, as that technology has progressed to the point whereby it can facilitate virtual presence it has also progressed to the point where it can be used to commission extremely sophisticated fraud. Deep Fake face-swapping technology now allows one person’s face to be superimposed upon another, including in live videos. The more benign application of this technology, should you wish to take a look, has led to a proliferation of videos circulating on social media casting the internet’s favourite actor, Nicholas Cage, in a variety of unexpected movie roles. You can find a compilation of such videos over here, but down blame me if you find yourself falling down a Nick Cage shaped rabbit hole: Nick Cage Deep Fake Compilation

It is also striking that emergency legislation has been enacted expressly authorising remote attestation in a number of jurisdictions with similar testamentary formality requirements to England and Wales – including New Zealand, New York, Ontario and a number of Australian states.

But it is not my intention with this article to extensively explore the arguments for and against remote witnessing. Suffice to say that there are compelling policy arguments for and against the contention that “presence” for the purposes of s.9 of the Wills Act 1837 should extend to remote presence.

Declaratory relief

The question that I wanted to address in this post is whether or not a claim could be brought for the court to determine whether a remotely witnessed will has been made in compliance with s.9 of the Wills Act, whilst the testator is still alive. Just such an application was recently issued in Ontario, however, to the disappointment of practitioners grappling with this issue here and around the world, the court declined to hear the case as the legislature enacted emergency legislation permitting remote attestation before the application could be heard.

Some jurisdictions in the world have express ante mortem probate jurisdictions allowing a claim to be brought within the testator’s lifetime to determine whether or not the will was valid. So far as I am aware, Ontario does not have such an express ante mortem probate jurisdiction, but, the courts of Ontario, like the courts of England and Wales, have the power to grant declaratory relief by pronouncing on the legal question that the parties have put before it.

In England and Wales, r. 40.20 of the CPR provides that the court may make binding declarations whether or not any other remedy is claimed, so such claims can be brought as a free-standing claim.

This is an extremely broad and flexible jurisdiction. As summarised by Neuberger J (as he then was) in Financial Services Authority v Rourke [2001] EWHC 704 (Ch) the court may, as between the parties to the proceedings, “grant a declaration as to their rights, or as to the existence of facts, or as to a principle of law, where those rights, facts, or principles have been established to the court’s satisfaction.”

There are limits on this jurisdiction. The court will not pronounce on a hypothetical matter. As Pumfrey LJ put it in, Nokia Corporation v InterDigital Technology Corporation [2007] EWHC 3077 (Pat), the court will not engage in “the legal equivalent of shouting in an empty room”. Moreover, the jurisdiction to grant a declaration is an example of the adage “just because you can, doesn’t mean you should” and the court must consider whether or not it is appropriate to entertain the request for a declaration.

In Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387, Aikens LJ helpfully summarised the considerations to be applied by the courts when deciding whether or not to grant declaratory relief as follows:

120. … I think that the principles in the cases can be summarised as follows.

(1) The power of the court to grant declaratory relief is discretionary.

(2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant.

(3) Each party must, in general, be affected by the court’s determination of the issues concerning the legal right in question.

(4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue; (in this respect the cases have undoubtedly “moved on” from Meadows ).

(5) The court will be prepared to give declaratory relief in respect of a “friendly action” or where there is an “academic question” if all parties so wish, even on “private law” issues. This may particularly be so if it is a “test case”, or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned.

(6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court.

(7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question it must consider the other options of resolving this issue.

There is, so far as I am aware, no case in which a court has ruled upon a question concerning the validity of a will before the testator’s death. One possible objection is that a will is “ambulatory” and creates no rights in favour of the beneficiaries until the death of the testator. This would appear to offend point 2. in Lord Justice Aitkens’ summary above: the need for there to be a real and present dispute between the parties.

However, the courts have shown a willingness to take a flexible approach to this issue. In Milebush Properties Ltd v Tameside MBC [2011] EWCA Civ 270, the Court of Appeal considered that declaration could be granted where the dispute relates to a legal right which might come into existence in the future.

The most important consideration, as stated by Neuberger in Financial Services Authority v Rouke is likely to be whether the parties have a legitimate interest in obtaining the relief sought, whether to grant relief by way of declaration would serve any practical purpose and whether to do so would prejudice the interests of parties who are not before the court.

It is likely, in my view, that a court would be willing to grant a declaration dealing with the question of whether or not a will witnessed remotely was compliant with s.9 of the Wills Act. However, it will be critical to show that there is a practical purpose to the claim (a case where the testator had no alternative but remote witnessing) and that the interested parties are before the court and represented.

What would be the procedure for such a claim?

The Chancery Division is the appropriate forum for such a claim. Claims for declaratory relief can be brought within Part 7 proceedings with particulars of claim, or by way of a Part 8 claim form with supporting statement. Part 8 proceedings are not appropriate where there is a substantial dispute of fact but would be apt for a case of this nature, where the facts will be unlikely to be contested, and the issue is a point of law.

The Part 8 procedure has the advantage of being considerably more streamlined and cost effective than a Part 7 claim. Such claims are usually listed upon issue for a hearing to consider whether or not the relief claimed can be determined or whether case management directions are required. In an appropriate case, the court may be willing to bring the matter on quickly for an urgent hearing.

Undoubtedly, such an application could run up significant costs; particularly if there are numerous parties that require representation. However, where the value of the estate justifies the cost, it would be cheaper than bequeathing a contentious probate dispute to the beneficiaries and there is a significant unquantifiable benefit to the peace of mind that clarity on this issue would bring. Of course, there is also the risk that, just as with the Ontario case, legislation could yet be introduced that would make the claim academic before it is determined. The Ontario legislation was enacted at midnight before the claim was to be heard. That has something of a fated feel to it, perhaps commencing such a claim here would be the catalyst to finally prompt action from the government on this issue.