This is an attempt to make it easier for people to record their final wishes whilst continuing to protect the elderly and the vulnerable.
In response to the Coronavirus pandemic the UK Government have allowed amendments, which come into force today, to the legislation that deals with the witnessing of Wills, to legalise remote witnessing of Wills.
What was the procedure for witnessing a Will prior to this pandemic?
The legislation which governs the witnessing of Wills is set out in Section 9 of the Wills Act 1837 and states that for a Will to be valid it must be in writing and signed by the person making the Will (or by some other person in their presence and at their direction) ("the testator"), who intends by their signature to give effect to the Will. The testator's signature must be made or acknowledged in the presence of two or more witnesses, who must sign the Will in the presence of the testator.
What are the recent changes?
Recent changes which will come into effect today (28 September 2020) but which will be backdated to 31 January 2020 (the date of the first confirmed Coronavirus case in the UK), will allow Wills to be witnessed via video link, for example, Facetime or Zoom, on the basis the quality of sound and video is sufficient to see and hear what is happening.
These changes will remain in place until 31 January 2022 or as long as is deemed necessary, after which Wills must return to being made with the testator and the witnesses being physically present together. The Government have stressed that the use of video technology to deal with witnessing of Wills should remain a last resort. Where it is safe to do so, Wills should continue to be witnessed in the conventional way with the two witnesses being physically present.
How does witnessing a Will by video link work practically?
Whenever a Will is witnessed it is essential that there is a clear line of sight between the testator and the witnesses, so given current restrictions in relation to social distancing, that might be through a window or an open door, it might by from a corridor or adjacent room into a room with the door open or witnessing outdoors from a short distance, for example, in a garden.
That need for a clear line of sight remains essential if a Will is signed by video call – all the parties need to ensure they can see each other and their actions. The testator should hold up the front page of the Will to the camera to show the witnesses, then turn to the page they will be signing and hold this up to the camera as well. The witnesses must see the testator write their signature on the Will. The Will must then be taken to the two witnesses to sign, ideally within 24 hours and they must then hold the document up to the camera and the testator and the other witness must see them on the video call sign their name. If the two witnesses are not together when signing once one witness has signed it must be then taken to the second witness, as soon as possible, to go through the process again. All parties need to be present on each video call.
It is essential that all parties sign the same document and not counter-part documents.
Where possible the video of the signing and witnessing process should be recorded and the recording retained.
Should the wording of a Will be amended to reflect that the Will has been witnessed remotely?
The wording of the Will should be amended to reflect the fact it has been witnessed remotely by video link and that there has been a recording of that process.
It would be advisable to include a formal statement in the Will along the following lines:
"I, XX, wish to make a Will of my own free Will and sign it before these witnesses, who are witnessing me doing this remotely."
Are there any risks associated with these recent changes?
The safest option always has to be the testator and the witnesses all being present in the same place to sign the Will and where possible that should always be the procedure that is followed.
Video witnessing will be really helpful in some circumstances, but it carries more risks, as it leaves a lot of scope for challenges to a Will upon the death of the testator on the basis that the Will has not been validly executed.
What if the recording is lost or misplaced, or the passage of time means its location is forgotten? Is other evidence available to prove that the proper procedures have been followed? That may not always be the case.
There are also issues surrounding assessing capacity and undue influence/duress. This is particularly the case with testators who are seriously ill, or who may have sight and/or hearing difficulties that require special care, if the parties are not physically present together.
Dealing with execution by video link could also create issues with the Will not being signed in the correct place, which could lead to doubts over whether the Will have been properly executed.
Time delays in sending the Will to the witnesses to sign may cause issue in urgent situations, for example, if a witness is temporarily unavailable to deal with matters, or if they fall ill themselves.
There are also potential issues with confidentiality if a Will is being sent by post, as the witnesses will need to see the full original document. The Will may become damaged or lost in the postal system. If a testator is so ill as to not be able to meet with his or her witnesses in person, might the testator also struggle to deliver the signed Will to the witnesses.
All of these issues mean that video witnessing should always be the last resort.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.