After months of speculation as to whether the rules regarding the witnessing of Wills would be relaxed during the pandemic, the government has announced that it is introducing legislation in September to allow the use of video-conferencing for the witnessing of Wills.
As mentioned in my last briefing, the current position is that a Will must be signed in the “physical” presence of two witnesses at the same time, who must then sign in the presence of the testator.
We understand that the legislation will provide that the meaning of “presence” of a witness will be extended to allow virtual witnessing using a live video link. The testator must still sign in the presence of both witnesses and they must both have a clear view of the signature being written on the document by the testator.
The witnesses must sign the same original copy of the Will in the testator’s presence. This means that once the testator has signed, the original Will must be taken or sent to the witnesses to sign. Counterparts are not permitted and neither are electronic signatures. When the witnesses sign, the testator must be able to see them doing so on a live video link, and ideally all live video links should be recorded. It remains good practice, though not legally required, for the witnesses to also see each other sign. The Will is not valid until all three individuals have physically signed it and according to government guidance, ideally the Will should be signed by all parties within 24 hours.
The legislation will have a retrospective effect and will apply to Wills that have been made this way since 31 January 2020. The legislation will be in force until 31 January 2022 but this can be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures.
Whilst this will be welcome news to anyone who has made a Will in this way during the pandemic, or is considering doing so, there is no case law yet on the method of witnessing Wills via video link and it presents an increased risk of challenge and opportunity for abuse, for example, without being physically present, it might impossible for the witnesses to be sure that there was nobody else in the room influencing the testator.
Under this new method, confidentiality may also be an issue, as the Will must be sent to each of the witnesses who may take the opportunity to read it. Further, delays are highly likely when arranging for the circulation of the original Will to the witnesses, and it is not inconceivable that a testator might die before the Will is completed. As the rules will not apply if Probate has already been granted when the legislation comes into force, it is possible that if a testator made a new Will during the pandemic in this manner, and died shortly after, a race could be triggered to admit an old Will to probate, even if a newer Will has been validly executed under the new rules.
The government has emphasised that the use of video technology should remain a last resort and that where it is safe to do so, Wills should be signed in the physical presence of witnesses. We would advise that you only execute your Will using video witnesses if it is impossible to sign it with two witnesses physically present, and even then, only with professional advice. We can advise on the inclusion of a bespoke attestation clause in your Will, arrange for the video witnessing to be recorded, and ensure that the strict procedural requirements are adhered to.
Please do contact us if you have any questions.