WhatsApp with a digital will? – Finding tech solutions for making a will in isolation

The firm is using online messaging service WhatsApp. The video messaging facility allows an individual to instruct a solicitor in secret. The signing can then be witnessed – again by video messaging.

“We have seen significant interest from individuals wanting to either create or update their wills, but the strict lockdown regime has made the physical witnessing of wills all but impossible. We are having to think creatively to ensure that their final wishes are recorded," said Amanda Noyce, a partner in the wills and probate team.

“We have recently acted for a very ill individual with Covid-19, taking instructions from him via a WhatsApp video call. We were able to check that he was alone in the room to ensure he was not being coerced and then recorded his wishes. A draft will was emailed to him.

"The signing of his will was witnessed by his solicitor via a second WhatsApp video call and the solicitor’s wife. Both the solicitor and his wife signed the will as witnesses.

“The received wisdom in legal circles is that this may not be a truly valid will as the witnesses were arguable not ‘in the presence’ of the individual when signed, as stipulated by the Wills Act 1837.

“Unfortunately, whilst photography was proving very popular in the 1830s, lawmakers at the time did not envisage film and video calls let alone a worldwide pandemic. The Law Commission, when reviewing the legislation in 2017 also did not take into account highly contagious individuals and the making of a will via video technology.

“We believe that many families will choose to accept wills witnessed by video as being valid, reflecting the true last wishes of a family member. However, there will inevitably be those who would wish to challenge the terms of such a will.

"There will probably have to be a test case after lockdown eases to assess whether the judiciary believes that ‘presence’ can mean ‘via video link’.