A member has contacted STEP with the following query:
I have a client in France. He wants to use his own witnesses to his Will signature. They are in England.
If a client sets up a Skype connection and the witnesses actually see him signing the attestation page, then he posts the Will to the witnesses to add their signatures, would it be valid please?
Emily Deane
STEP
In the words of Sir Humphrey Appleby, such a step would be āa brave
decisionā.
Not only must the testator sign or acknowledge their signature in the
presence of both witnesses, but each witness must āacknowledge their
signatureā (or sign?) in the presence of the testator, although not of
each other. Would they also do that by Skype?
I think that to adopt the process proposed would be to strain the law as
it currently stands. Even with supporting evidence (the Skype
"conversation" perhaps being witnessed by a notary), I do not believe
the arrangement would be sufficient to enable the practitioner to
warrant to the client that the will would not be found wanting if
challenged.
Paul Saunders
Section 9 of the Wills Act 1837 was substituted by sec 17 Administration of Justice Act 1982 and I would assume that the word āpresenceā has to be construed as at that date, and I doubt if anyone at that time could have envisaged presence as being extended to Skype.
If the client wants to make a valid will he should get witnesses who can all smell the coffee. Or is he just trying to make a point?
Tim Gibbons
A degree of actual physical presence is required under the underlying English common law, I stress here that the Wills Acts are interpreted against that background, not against that of the code civil.
If he is habitually resident in France at the time of decease, then technically it is the French Court or jurisdiction which has the jurisdiction over the entire succession, as they see it under article 4 of Regulation nĀ° 650/2012.
If the testator is exercising the nationality option in the Succession regulation nĀ° 650/2012, then in order to satisfy the French requirements, which will refer to the Regulationās rules as to form, then article 22 3. reads:
ā3. The substantive validity of the act whereby the choice of law was made shall be governed by the chosen law.ā
I stress that fortunately in you scenario, the will will be an act but not an authenticated act whose signature is confirmed by an authority. In France , a notary would be the first port of call. However, do not neglect the huissier de justiceā¦
It will need to comply with the Wills Act, and I do not see how Skype can be adduced to that to render the will valid signed under āvirtualā witnessing under English law, which governs the substantive validity of the will.
I am unaware of any English caselaw which could stretch the principle that the witnesses have to be present to attest the signature and to apply their own signatures at a later date, which here physically would follow necessarily.
Reading between the lines, I would suggest that if the client wants to exclude otherwise forced heirs etc. by the nationality option, then he should ensure that the witnesses are there to physically witness his signature.
The substantive validity of the will could be set aside on an application by a forced heirs or other if they are not present in the room, and I doubt whether any Skype witness would be happy to perjure themselves to state that they were present.
There are presumptions in play here, see, for example, Sherrington and others v Sherrington - [2005] All ER (D) 359 (Mar) as to presumptions as to intention on the part of the testator to execute, and also that the witnesses knew that the will whose signature which they were attesting was a will. However, importing English legal presumptions into France to face down a challenge which can allege that the witnesses were not present might defeat the entire object.
One point in Sherrington was the recourse to the presumption in the execution clause that the testator, who was a solicitor, and therefore knew that he was signing a will.
I would urge caution, and simply suggest that two persons be physically present who are told, in French, if necessary that they are witnessing the execution of an English will to ensure that they can say that the Testator signed it in the knowledge that it was his will.
I stress that French law does recognise the confidentiality of testamentary dispositions. May I suggest that a French notary be asked to provide two clerks for this, unless of course there are issues which the testator wishes to shield from any immediate view; either that or a French huissier de justice and their assistant could attest. That would be totally confidential.
Anyone up for drafting an express āvirtualā signature and attestation clause incorporating ex post facto witness signatures so as to reinforce the presumption of valid signature? I would feel very uncomfortable, as the Wills Act simply iterates the basic common law position in statutory form, and I would not advise that a virtual presence of a witness, without their being able to actually handle the will on the signature of the testator and look at him and it, is the correct answer.
The real issue is cultural, whilst the French have an authentic acte or notarised will, the use of a typed format is less frequent, as the inevitable issue post death is that the disgruntled will say they did not know what he was signing, hence the unwitnessed French olographe will being the purest expression of handwritten and unwitnessed testamentary intention. Perhaps you could use one of those which technically can be valid as executed in accordance with the form in the state of its execution under the Wills Act?
You may need to consider what the effect of what is proposed, as a simple English āadministrativeā expedient, would be in France. To my mind, any disgruntled heir, or for that matter an administration would simply say that the document is a āfraudeā on its face, and I have no doubt that such an argument would find a great deal of sympathy in France, and to my mind less than adequate support in England: the case of Sherrington being but one in point. How can the witnesses prove that they were in France without travel documentation? They cannot assert that the will which they will be asked to sign was the same one that they āvisualisedā the testator signing.
The difficulty to face will be that the document may need to be used in France, and it will not be seamless and watertight there.
Peter Harris
Good morning and thanks to all who have replied.
This is as I suspected but I needed views on the acceptability of Skype in todayās world.
I have taken all of the advice on board and, unsurprisingly, have decided to disregard this method and stick to the traditional way. The client will have to choose other witnesses who can be present.
Hazel Evans
Excelsior Legal & Estate Services (UK) Ltd
There is a large difference between a Court taking evidence by a court videolink system, and a mere Skype conversation.
Peter Harris
In Wright v Manifold (1813) a will was held not duly executed because the testator was in the next door room from the witnesses, and although one might have been able to see the witnesses from that room, the testator was not positioned in his room in such a way that he could have done.
The LCJ in that case defined the limit of āpresenceā as requiring āthat the witnesses should be actually within the reach of the organs of sightā. So there may be room (no pun intended) for an argument that if the witnesses can see the testator, and the testator can see them, then they are in each othersā presence.
But of course, one could not advise oneās client to make himself the test case!
Alexander Learmonth
New Square Chambers