“Hello, can you hear me?” – video-witnessing of wills to be made legal in England and Wales

14 August 2020

Big news was announced by the Government at the end of last month: legislation will be introduced to allow remote electronic witnessing of wills – including for some that have already been made – in a significant amendment to the long-standing requirements. However, it will only be temporary.


What were the previous requirements?

183 years ago, via the Wills Act 1837, Parliament stipulated the requirements to make a legally valid will, namely:

  1. It must be in writing;
  2. It must be signed by the person making it in the presence of two independent witnesses; and
  3. The witnesses must each sign it in the presence of the person making it.

Arranging a get-together for this purpose was relatively simple until the Coronavirus pandemic introduced social distancing and lockdown restrictions. Suddenly, at a time when many were desperate to ensure they had an up-to-date will, some ‘inventive’ methods had to be followed to satisfy the physical ‘presence’ requirement in steps 2 and 3 above.

What have the government changed?

In recognising the challenges faced by those shielding or self-isolating and seeking to make a will, the Government are now deeming it legal for wills to be witnessed in ‘virtual presence’, via video-link, as an alternative to physical presence.

To what wills will this apply?

The change will be made by a statutory instrument (SI) to be enacted in September. It will apply to cover wills already made since 31 January 2020 (except cases where a Grant of Probate has already been issued or applied for) and up to 31 January 2022, however this term could be shortened or extended by the Government if deemed necessary.

Importantly, once the term ends, the old law will apply again and wills must then return to being made with physically present witnesses only.

What does 'video-witnessing' require?

It has always been the case that ‘presence’ requires a ‘clear line of sight’ of the signing and this will still apply to video-witnessing. The witnesses must be able to see the testator signing the will. Therefore, a video-link where just the head and shoulders of the testator are visible will not be sufficient.  

A bespoke attestation clause should be included in the will, stating that it is to be witnessed virtually. E-signing will not be permitted; signatures must still be ‘wet’. This means that the same document will need to be sent to the witnesses for signature once the testator has signed, ideally within 24 hours. 

The type of video-conferencing or device used is not important, as long as the quality of the sound and video is sufficient for everybody to see and hear what is happening. The witnesses should acknowledge that they can see, hear, and understand their role in witnessing the signature. 

Finally, the witnesses must be able to see the Will being signed in real-time; witnessing pre-recorded videos is not permissible.

Wills are tricky at the best of times but the ability to video witness makes it even more important that legal advice is sought so that individuals properly discuss their wishes and aims and ensure that any execution meets the new legal requirements. 

Time to arrange the Zoom call?

The new law may be a convenient one but it should be approached with extreme caution.

Whilst we welcome the changes in certain situations, we are living in a time where the number of contested wills is increasing significantly. There is no doubt that some dissatisfied with their inheritance (or lack thereof) will look very closely at how the will was witnessed to test its validity. Furthermore, there are concerns that those who are vulnerable or lack capacity may be taken advantage through the use of video witnessing. The Government seem to be aware of this, alongside the potential for fraud and undue influence. 

We are waiting to see what the SI actually says, but it is quite clear that this is a ‘last resort’ measure. The fact that the Government have made clear the old law will apply again once the term ends reflects that.

It does, however, advance the cause for a general review of archaic Wills legislation which the Law Commission is currently undertaking. The changes to execution are only the tip of the iceberg. 

For now, the official advice remains to arrange physical witnessing where it is safe to do so. If video-witnessing is unavoidable, legal advice should be taken and the entire process should be recorded and safely retained in the event that it is ever challenged.

About the authors

Alfie Cranmer is a trainee solicitor in our Private Client team where he works on matters relating to wills, tax and trusts, probate and Court of Protection proceedings.

Diva Shah is an Associate in the Private Client team. Diva acts for various clients including high net worth individuals, entrepreneurs, executors, trustees and individuals who lack mental capacity on a broad range of matters .

 

Further Information

For more information on the issues raised in this blog, please contact a member of our Private Client team.

 

Latest blogs & news

Trans people who lack mental capacity – How are decisions relating to transitioning made?

Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.

Does the law on predatory marriage need to change?

In recent years there have been calls for a change in the law to protect vulnerable adults from falling victim to what has become known as “predatory marriage”. This is due to a rise in cases where fraudsters have married vulnerable and often elderly individuals, without the knowledge of their loved ones.

Modernisation of Lasting Powers of Attorney – What does the future hold?

The Office of the Public Guardian (OPG) and the Ministry of Justice are working together to modernise the process of making and registering Lasting Powers of Attorney (LPAs). The consultation is open to the public and will remain open until 13 October 2021. 

HMRC no longer reviewing Family Investment Companies

Good news – The “secret” specialist HMRC unit set up in 2019 to examine the tax avoidance risks has been wound up after finding no evidence of correlation between the use of FICs and non-compliant behaviour.

#FreeBritney - How her sad case would never happen in the UK

Deputies are typically appointed because individuals cannot make decisions for themselves due to illness, like Alzheimers or dementia, old age or perhaps as a result of a catastrophic personal injury or medical negligence. 

Financial Abuse – how to spot the signs

There are several reasons why someone may need the assistance of a financial deputy, stemming from incapacity due to an accident or a consequence of old age. There is however a darker side to this type of work that Court of Protection lawyers are seeing more and more of. This relates to those who have suffered some form of financial abuse and/or undue influence.

Managing compensation after a spinal injury

After a spinal injury the long-term impact on your life and that of your families can be significant. You may need a care package, a new home or adaptations to their existing accommodation, therapies and specialised equipment.

Death in the digital age – continuing your online life

The pandemic has changed the world – there is no doubt we are all “online” far more now than before. Social media now extends into every aspect of our lives, from those notorious repetitive baby pictures to those ‘should never have been posted university photos‘. We collect and share moments of our lives in the digital world.

Should I set up a joint lasting power of attorney for my mother?

In the latest edition of the Financial Times Money Q&A, Jemma Garside, senior associate in our private client team answers a question: "Should I set up a joint lasting power of attorney for my mother?"

I am an attorney – can I make gifts on behalf of a donor?

Subject to any restrictions or conditions in the Lasting Power of Attorney (“LPA”), a property and affairs attorney can make gifts on the donor’s behalf to the donor’s friends, family members or acquaintances on customary occasions. 

Going through a divorce? Don’t forget to update your Will!

Going through a divorce process is stressful. There are lots of things to think about and one of these is likely to be what you should do to protect your hard-earned money.

I’m an attorney under a Lasting Power of Attorney – what happens next?

A donor must have the mental capacity to make a Lasting Power of Attorney (“LPA”) for property and affairs and health and care. The completed LPA is then sent to the Office of the Public Guardian (the “OPG”) for registration. Each page of the registered LPA will be stamped with ‘VALIDATED-OPG’.

Business LPAs - How to safeguard against a future incapacitated partner, director or shareholder?

As a business owner/shareholder, what would happen to your business if you were unable to make decisions – would someone be able to authorise payments or enter into contracts and keep the business running? 

Lasting Powers of Attorneys for business and professional affairs

Lasting Powers of Attorney (LPAs) are vitally important documents. Our previous blogs have touched upon what LPAs are and top tips for anyone planning on putting an LPA in place. Most individuals should at least put in place a financial LPA to cover their home and personal finances. It is however a good idea in some cases to have a second financial LPA.

Don’t make an awful year even worse…Separation and Capital Gains tax

The last 12 months have put an awful lot of pressure on the family unit and sadly this has led to a spike in separation and divorce amongst married couples. With the end of the tax year fast approaching (last day Monday 5th April – Easter Monday) it is timely to consider the tax consequences of separations.

ACC Guidance update – when does a deputy need COP approval for legal work?

Whilst managing the property and affairs of another person a Deputy appointed by the Court of Protection may come across issues that require them to pay for legal advice and assistance on their behalf. Examples could include purchasing a property, challenging a care plan or obtaining advice about a dispute. 

Nothing like bad succession planning to ruin a good reputation

Partner and head of our Private Client team, James Ward, writes about the importance of entrepreneur's putting in place a succession plan to safe guard their reputation. 

Ten top tips of Lasting Powers of Attorney (“LPAs”)

LPAs are important, and are steadily growing in popularity as individuals realise how necessary they are to support friends and family in the event that they lose mental capacity. Our previous blog gave an overview of how LPAs work and the requirements for making them. This time, we focus on our ten top tips for LPAs.

What are Powers of Attorneys?

A Power of Attorney is a very important estate planning tool, especially when an individual loses capacity. Whilst the term ‘Power of Attorney’ seems to be thrown around a lot, it is often misunderstood or not used correctly. In fact there are several different kinds of powers of attorney that can be used for different purposes.

Estate Planning 2021 – Looking beyond COVID-19

As we find ourselves in another national lockdown, the New Year presents an opportunity for individuals to review their assets and conduct some succession planning.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility