Video Witnessing of Wills Legalised

We recently wrote an article on the potential for video witnessing of Wills to be made legal. We are now able to report that The Ministry of Justice (MoJ) has formally announced that Wills witnessed via video i.e. Zoom, Facetime or Skype are to be made legal which is news that has been long-awaited and very much welcomed by the will writing profession.

There has been lots of doubt over the last few months when the country went into lockdown about how Wills could be witnessed whilst still adhering to the social distancing rules in place and also ensuring the Wills were still validly executed in the presence of two witnesses. As we stated in our earlier article, many will writers adapted to the pandemic by using Zoom or Skype to still take instructions remotely.

The amendment to the legislation is expected to come into force in September 2020 and will amend the 1837 Wills Act to include video witnessing so where the current requirement is for Wills to be signed in the presence of two witnesses, their presence can now either be physical or virtual. It is important to note that in line with current law, the requirement of two witnesses will still be necessary to protect people against undue influence and fraud.

The amended legislation will also apply to codicils which have the same signing and witnessing requirements as a Will.

Justice Secretary Robert Buckland said: “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.”

This change to the law allowing wills to be validly witnessed by video link has a retrospective effect so it will apply to any wills executed in England and Wales after 31 January 2020, (which was the date of the first confirmed coronavirus case in the UK), providing the quality of the sound and video is sufficient to see and hear what is happening all the time. It is important to note it will not apply in cases where a Grant of Probate has already been issued for the deceased or where the application is already in the process of being administered.

However, it is important to note that although Wills can be witnessed virtually, they still need to be signed as electronic signatures are still not permitted. The witnesses also cannot be beneficiaries as has been the case previously.

Witnessing of the Wills must also be in real-time and not pre-recorded. Where possible, the signing and witnessing should be recorded and the recording stored safely which will assist the Courts in the event the will is later challenged.

So how will this actually work in practice? The Government has set out some useful guidance in stages which is as follows:-

Stage 1:

• All parties are to be present in the same call and see one another – will writer, testator and both witnesses.
• The will writer should seek express permission from the parties that they are happy for the witnessing and signing to be recorded.
• The will writer should hold up the front page of the Will to the camera and then turn to the signing page and hold this up for all parties to see.
• The testator, while signing can say the following – “I first name, surname, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely.”
• The witnesses must see the testator sign the Will and it is advisable they confirm they saw the testator sign.

Stage 2:

• The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the Will. The witnesses can be physically present with one another i.e. from the same household or via video link.

Stage 3:

• The Will should be taken to both witnesses for them to sign. The guidance states this should be ideally within 24 hours of the testator signing the Will. It needs to be the same document as counterparts will not be accepted.

Stage 4:

• The testator and will writer must be able to see the witnesses sign the Will.
• The witnesses should hold up the Will to the will writer and then sign it. The will writer and testator must see them sign the Will and not just their heads for example.
• Another option is for the witness to hold up the Will where it has been signed and confirm it is their signature.
• It is advised for this process to be recorded also.

Stage 5:

• In cases where both witnesses are not physically present with one another, stage 4 will need to be repeated and on both occasions both the will writer and testator must see the Will being signed. Although it is not a legal retirement for both witnesses to sign in the presence of one another, it is good practice.

Where Wills are witnessed via video link, consideration must be given as to the attestation clause. Guidance on the form of attestation clause to use will be given closer to the time as there is currently no recommended wording for it so watch this space.

Despite this landmark change, the Government still advises that where possible, witnessing of wills should still be carried out in the physical presence of two witnesses where it is safe to do so and video witnessing should only be used as a last resort.  We already know that one option is to witness through a window so the guidance is to still use this method (or similar ones) where possible.

This change is expected to remain in place until 31 January 2022 or as long as deemed necessary after which the Government has advised the signing requirements will go back to how it has been i.e. physical presence of witnesses. The new rules have scope to be extended or shortened as required.

Although this is a temporary measure, this is a huge and very positive step for the profession.