Remote Will witnessing in England & Wales extended
For the last 183 years the legislation setting out how Wills should be signed has worked perfectly. The Wills Act 1837 provided that a Will must be: in writing, signed by the person making the Will (the testator) or a nominated person if they are unable to sign, in the presence of two witnesses and that each witness must then sign in the presence of the testator.
And then came Covid-19.
Impact of Covid on legislation
Social distancing, shielding and self-isolating made it very difficult for a Will to be signed and witnessed in the presence of the testator and so the Government introduced new legislation to amend the strict provisions of Wills Act 1837. This new law came into force on 28th September 2020.
What changed?
The new legislation allows people to use video-conferencing technology to witness a Will. The amendment which was temporary and due to end on 31 January 2022 has been extended by a further two years and will now continue to be permitted until 31 January 2024 at least to cope with the ongoing uncertainty of Covid-19.
All other requirements for the Will to be valid remain the same, i.e., the testator must have the necessary mental capacity to make the Will, and there cannot be any undue influence.
What does this change mean?
Anyone making a Will now or who has made a Will after the 31st of January 2020 will be able to use video to have their Will witnessed, if they are unable to sign in the usual way.
It does not matter what type of equipment is used to video the signing. It is however vital the Will is signed in real time, and that the testator and the witnesses have a clear line of sight of the signing of the Will and if possible, the witnesses should be together when witnessing via the video-link.
Are there any potential issues?
There are many potential issues with virtually signed Wills: Was the procedure followed correctly? Was the process abused? Was there any undue influence or fraud? The main potential issue is that the validity of the Will may be challenged when the testator dies.
In case the Will is challenged on testator’s death, to assist the Court in establishing if the process of Will signing was followed correctly, it is recommended that the whole procedure should be recorded, and the recording kept safe with the Will.
For those wanting to virtually witness a Will, the Ministry of Justice has provided guidance on their website www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing.
Other issues which may emerge are, as follows:
- The testator may die before the process is completed, resulting in the Will being invalid;
- There may be issues with the video equipment which may result in the clear line of sight requirement not being followed;
- As very specific steps need to be taken for the Will to be valid, there is a very high risk of invalidity if any of the steps is not followed correctly;
- The Will may be lost in the process when being taken from the testator to the witnesses, or from one witness to the other;
- Confidentiality is at risk – when a Will is signed in the usual way, the witnesses don’t have to know the contents. By receiving the Will without the testator being present, they will have the opportunity to read the Will.
Alternative ways to sign Wills when self-isolating
Although video witnessing continues to be the legitimate way to execute a Will, the Government’s advice is that video witnessing of Wills should only be used if the Will cannot be signed in the usual way.
Even if someone is self-isolating or shielding and it’s not possible to have the testator and the witnesses in the same room, as long as the Will is signed in the ‘clear line of sight’ (and all other requirements are retained), Wills could be signed through a window of a house or a car, from another room with door open, or outside in the garden or over a garden fence.
Making a Will is extremely important and so while the extension of video-witnessing of Wills is welcomed while Covid continues to restrict our daily lives, this process should be approached with care and only used as last resort. Ensure you seek legal advice before you consider signing your Will via a video link. If you wish to discuss your Will, speak to Kat King on 01749 341805 or email kat.king@mogersdrewett.com