A solicitor and his wife have witnessed, via WhatsApp video, the will of a client who was suffering from Covid-19.

While the coronavirus crisis has seen considerable innovation from solicitors regarding how to execute wills while still observing social distancing, the general assumption has been that the Wills Act 1837 requires a witness to be physically present and does not allow someone to witness a will remotely.

And the firm involved in this particular case, Royds Withy King, intends to re-execute the will conventionally once that is possible.

Amanda Noyce, a partner at Royds Withy King, told Legal Futures: “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.”

While she admitted the process might not comply with the Wills Act, Ms Noyce added: “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’. The question for a future judicial forum is whether ‘in the presence of’ includes ‘by camera’, given the context of the pandemic. The Wills Act did not contemplate the modern age.

“Of course, we advised the client of the risk and also that, if he recovers, he should re-execute the will conventionally to be sure.”