“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.

 

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