In August Helen Langworthy, the Head of our Private Client team wrote that the government had agreed to allow witnessing of Wills by video conference. Nearly six months on we are all becoming accustomed to accommodating this new normal, writes Shelina Vaiya, a Solicitor in our Private Client team.
Previously the law stated that a Will had to be made ‘in the presence of’ at least two witnesses.
The Government amended the Wills Act in September to reassure the public that Wills witnessed via video conference are deemed legal, as long as the quality of the sound and video is sufficient to see and hear what is happening at the time.
Crucially, the move maintained the vital safeguard of requiring two witnesses – protecting people against undue influence and fraud.
Robert Buckland QC MP, the Justice Secretary & Lord Chancellor said: “We are pleased that more people are taking the incredibly important step to plan for the future by making a Will.
“We know that the pandemic has made this process more difficult, which is why we are changing law to ensure that Wills witnessed via video technology are legally recognised.
“Our 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.”
The actual virtual process is quite cumbersome in practice as you will see below. Even though most of us are familiar with Zoom, Teams or Facetime if the Will has to be posted to the witnesses, there is the risk that the testator will die before the witnesses sign. If this happens, the Will is invalid.
Setting up *
- The type of video-conferencing or device used is not important.
- Witnessing pre-recorded videos is not permitted – the witnesses must see the Will being signed in real-time.
- The witnesses and testator can all be at different locations, on a three-way link, or two can be physically together with one at a remote location.
- If possible, the procedure should be recorded.
- The attestation clause should be amended to state that one or both witnesses are witnessing remotely.
The testator signs *
- Before signing, the testator should ensure that the witnesses can see them actually writing their signature on the Will, not just their head and shoulders.
- The witnesses should confirm that they can see, hear (unless they have a hearing impairment), and acknowledge they understand their role in witnessing the signing of a legal document.
- The testator should hold the front page of the Will document up to the camera to show the witnesses, and then turn to the page they will be signing and hold this up as well.
- The testator must physically sign the Will (or acknowledge an earlier physical signature). Electronic signatures are not permitted. The testator will date the Will with the date of signature.
- If the witnesses do not already know the testator, he/she should hold up photographic identification such as a passport or driving licence.
Witnessing the Will *
- The Will must then be taken or posted to the witnesses.
- The witnesses must physically sign the Will in the virtual presence of the testator, and, if possible, in the virtual or physical presence of each other.
- As with the testator, they should hold up the Will to the testator and sign (or acknowledge an earlier signature) (again the testator should see them writing their names, not just see their heads and shoulders).
- The witnesses will sign and date the Will. The date on which each witness signs the Will may be different to the date on which the testator has signed. The execution process is not complete until everyone has signed.
The government has stated that the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of Wills where and when it is safe to do so.
Once the immediate dangers of COVID-19 are overcome it is strongly advisable for the client to attend the office and do the signing again in front of a solicitor.
In the meantime, these changes will remain in place until 31 January 2022, or as long as deemed necessary, after which Wills must return to being made with witnesses who are physically present.
Why make a Will?
By having a well-prepared Will – one that reflects your up-to-date financial, property and family situation – you can be confident that your estate will pass in accordance with your wishes. If, on the other hand, you die without having made a valid Will, there is a risk that your loved ones may not inherit your estate; in this situation, the intestacy rules will determine who will inherit and the outcome may not be as you intended or as anticipated by those close to you.
That is why we always encourage clients to plan ahead. We know that dying and post-death matters are topics most people would prefer not to have to think about, but it is so important to face the practicalities around them. At Bishop & Sewell we always strive to make the process as straightforward as possible. Making a Will is now just a normal part of preparing for the future – one that brings peace of mind that your assets and wishes will be taken care of in the way you would like them to be.
* Lesley King (2020) – Current Issues in Preparing Wills
If you are in need of advice or assistance on any of the issues mentioned in this article please contact Shelina Vaya or another member of our expert Private Client Team on 020 7631 4141 or email firstname.lastname@example.org
The above is correct as at 17 December 2020. The information above may be subject to change as this is a constantly evolving situation