In September this year, The Government legalised the remote witnessing of Wills – making it easier for people to record their final wishes during the Coronavirus pandemic.
These measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable who may be shielding. The measures have also been backdated to 31 January 2020 – the date of the first confirmed coronavirus case in the UK – meaning that any Will witnessed by video technology from that date onwards will be legally accepted.
Before September the law stated that a Will must be made in the physical presence of at least two witnesses and that both the testator and witnesses must be able to clearly see the Will when the signatures are made.
In September, the Wills Act 1837 was amended to now include video-witnessing. These new laws are designed to maintain the important safeguarding procedures of requiring two people to witness the signing of a Will, protecting testators from undue influence and fraud, whilst allowing parties to adhere to protective Coronavirus measures.
Ministers have acted to reassure the public that Wills witnessed in such a way will be deemed legal, as long as the quality of the sound and video is sufficient to see and hear what is happening at the time. There are some other important considerations which I will come to later on.
One of the key points is that the use of video technology however, should remain as a last resort, and people must continue to arrange physical witnessing of Wills where it is safe to do so. Wills witnessed through windows for example are already considered legitimate in case law, as long as they have clear sight of the person signing it.
Here is the Ministry of Justice guidance in relation to witnessing a Will in this way:
- Stage one – Both the testator and witnesses have to be able to see one another clearly and witness all actions that they make during the video call, e.g. witnessing the signatures on the Will itself, seeing the front page of the document and all pages that are turned to and signed. This measure allows for the current laws in relation to the clear line of sight rules to be adhered to.
- Stage two – All parties must confirm that they can see and hear each other at the start of the video call, and the witnesses must acknowledge and understand their role in witnessing the signing of the Will.
- Stage three – Once the Will has been signed by the testator (whilst being witnessed), the document must be sent to the witnesses for their signatures, preferably within 24 hours, if possible.
- Stage four – Once the witnesses receive the Will that has been signed by the testator, they must sign the Will following the same procedure above (stage one). Their signatures must be seen by the testator and the other witness during the video call (if the two witnesses are not physically together). The Will becomes valid once both witnesses have signed the document, and so this process may have to be repeated for the second witness if they are not in the same household, adding more time into the process.
The government’s decision to allow Wills to be witnessed remotely until 31st January 2022, will help alleviate the difficulties that some members of the public are encountering when making Wills, however, I do have my concerns. My main concern relates stage one above and the fact that the witnesses will not be present and will therefore not be signing the Will document in the same room as the testator. At present, their signatures are required on the Will and so there can be no dispute in terms of whether that was the actual document being witnessed.”
“With remote witnessing, whilst the witness will be able to see the testator signing a document, it is unlikely that they will be able to see or read the contents of that document on screen and therefore they are essentially witnessing the signature of something that they can’t see properly. This must raise the potential for disputes as to whether the document signed by the testator was in fact the Will that it was purported to be. You can see the potential for a dissatisfied party to produce a different Will in which they benefit and suggest that this was the Will that was remotely witnessed. I’m very uneasy about the change in the law, although I can see how the present position has made it necessary.”
There are however a few key considerations which if followed should minimise the risk of Will disputes further down the line:
- Use video witnessing of a Will only as a last resort. At Banner Jones we are offering Covid-secure Will appointments, where witnesses are provided so this should reduce the need for video witnessing to take place.
- Electronic signatures are not allowed. The Will must be physically signed by both the testator and witnesses.
- The video link must be clear and show the testator or witness signing the document, not just their head and shoulders.
- Witnessing the signature of the Will via a pre-recorded video is not permitted. The signing and witnessing of the signature must take place at the same time.
- When the testator signs the Will, it is advisable for them to say something along the lines of “I first name, surname, wish to make a Will of my own free will. I am now signing the Will before these witnesses (who should both be named), who are remotely witnessing me sign it.”
- If possible, all video calls should be recorded and saved. The videos will assist a Court in the event of the Will being disputed.
- The reforms will not apply where a Grant of Probate has already been issued in respect of a deceased person and/or where the application is already in the process of being administered.
- The reforms will also apply to codicils, which legally amend a pre-existing Will and must follow the same signing and witnessing procedures that are required for creating a new Will.
If you have any queries about producing a Will or have any concerns that a Will has been witnessed incorrectly then we have a team here to help you.