Virtual witnessing of wills

The UK government has introduced temporary legislation which allows wills to now be witnessed remotely using a live video link with effect from 28^th September 2020. The move is intended to make it easier for people to create wills during the coronavirus pandemic.

The issue over the execution of wills during the current pandemic has attracted a lot of attention given the difficulties involved in obtaining suitable witnesses whilst observing the rules regarding social distancing.

The new law is backdated to include wills that were witnessed via video from 31^st January 2020 (the date of the first registered covid-19 case in England and Wales) and will remain in force until 31^st January 2022 (although this date can be amended if required).

The law states that a will must be made “in the presence of” at least two witnesses and the effect of the change is that “presence” now includes video conference or other visual transmission.  This also applies to the execution of codicils.

The government recognised that for people shielding or self-isolating it was very difficult to be able to validly execute wills.  Needless to say there are other requirements for a will to be validly executed such as testamentary capacity, knowledge and approval and lack of undue influence.

The new legislation will not apply to two instances namely:-

1. Where a grant of probate has been issued or
2. Where actions have been taken pursuant to a grant of probate before the amendment to the law came into force.

Prior to the changes made and in the current environment, acceptable scenarios to achieve a properly executed will might include witnessing through a window or open door, witnessing from the corridor or adjacent room with an open door or witnessing outdoors, socially distanced, for example in a garden.

The government has said however that the use of video technology should remain a last resort and physical witnessing should continue where it is safe to do so.

Simon Davis, president of the Law Society of England and Wales has said “the government’s decision to allow wills to be witnessed remotely for the next two years will help alleviate the difficulties that some members of the public have encountered by making wills during the pandemic.”

Video witnessing-the process:

A strict process needs to be followed.

It is essential that both the testator (the will maker) and both witnesses have a clear line of sight of each other at each stage.  The process should ideally be recorded and the witnesses must see the testator sign the will (not just their head and shoulders) in real time.

The will is dated by the testator when he/she signs and is then sent or taken to the witnesses who must be seen by the testator, again signing in real time and this should ideally be done within 24 hours.  This part of the process should not be delayed.

There are obviously potential issues if a death occurs in the middle of this process as the will is not valid until all signatures are added.  If both witnesses are not together to sign, the process must be repeated.

The testator should hold the front page of the will up to camera to show the witnesses and then hold up the page they will be signing and the witnesses must follow the same process on their signing.  The witnesses should confirm that they can see, hear and acknowledge and understand their role in witnessing the testator’s signature.  If they are not present together, then this can be done by a two or three way video link.

The use of electronic signatures is not permissible due to the risk of undue influence or fraud and counterpart wills are also not possible.

Inevitably, there are increased risks of challenge in the witnessing of wills in this way:

• What if the will is lost, damaged or intercepted in the post?
• What happens if the connection fails during the video link?
• What about those present with the testator and who are out of sight of the camera? – potential undue influence claims might arise
• It might be argued that the signing did not follow the procedure correctly

Confidentiality can also be an issue in that the witnesses may read the will on it being sent to them (something which they would not ordinarily have the opportunity to do) and therefore they must be very carefully chosen as well as being independent.

Careful notes should also be taken, even where there is a video recording, which include the reasons for using a video link. The video recording should be retained and the will itself should reflect the change in the usual signing process.

Simon Davis has also said “in the long term, wider reform of the Wills Act is needed to bring it into the 21^st century.  You should continue to seek professional advice when making a will.”

Additional complications have been added by the introduction of the change in the law (not least in relation to the potential delays whilst the will is sent round for signature, particularly where the testator is in ill health) and it should be emphasised that video witnessing should only be used if it is impossible to achieve an executed will in the usual way.

As can be seen, video witnessing of wills can cause significant problems and is only appropriate in exceptional circumstances and professional advice is essential.

To discuss this, or any other related matter, please contact Louise Harrhy on 01483 887766, email us or start a live chat today.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.