The Government has announced that it is introducing legislation to allow people to use video-conferencing technology for the witnessing of Wills. These changes will be made via new legislation in September and come after months of speculation as to whether the rules would be relaxed during the pandemic.
Witnessing requirements have proved particularly difficult in recent months for those who are isolating and want to make a Will or update their existing documentation. The law, as set out in the Wills Act 1837 (the Act), currently requires the physical presence of two independent witnesses who watch the testator sign, and then sign their names and include their details. The Act will therefore be amended so that whilst this new legislation is in force, the ‘presence’ of those making and witnessing Wills includes a virtual presence, via video-link, as an alternative to a physical presence. It will also apply to codicils if a modification to an existing Will is required.
The new legislation will have retrospective effect and will apply to Wills made since 31 January 2020 and up to two years from when it comes into force (i.e. until 31 January 2022). This time-frame can be shortened or extended if deemed necessary. It will, however, not apply to cases where a Grant of Probate has already been issued or the estate is already in the process of being administered.
The Government has provided further guidance regarding the practical steps required for remote witnessing on their website, which can be viewed here. It states that:
- Although preferable, the two witnesses do not need to be together and all parties can be on a three-way live video conferencing link (pre-recorded videos are not permitted);
- All parties must have a clear line of sight of the document so care will need to be taken to ensure that the witnesses can see the actual signing;
- The testator should request the video is recorded and then hold the Will up to the camera so that the witnesses can view the front page and the page that will be signed. The witnesses should then watch the testator sign the document;
- The document must then be taken to the two witnesses (ideally within 24 hours). There will inevitably be a delay if both witnesses are in different locations and it is therefore preferable for witnesses to be part of the same household if possible or in a similar location to avoid delays; and
- Once the witness receives the Will, a further video call should be set up so that the testator can watch the witness sign their name and include their details as before. Again, the session should be recorded. This may need to be repeated for the second witness if they are in a different location and the Will has to be posted to them.
It should be noted that time is of the essence in this respect because if the testator dies before both witnesses have signed the document, it will be invalid. Secondly, although the two witnesses do not need to watch each other sign, it is recommended they do so in case the validity of the Will is ever called into question.
Finally, as a practical drafting point, it should be made clear that the Will has been executed under this new protocol. Those drafting the Will should consider including a declaration from the testator and an amended attestation clause to state that virtual witnessing has occurred and to confirm whether there is a video recording available. At present, it is still not possible for e-signatures to be used nor can counterpart Wills be signed.
Emily Grosvenor-Taylor, associate in the Firm’s Private Client team, says: “This is a welcome change to the law which should give comfort to clients who want to make a new Will or modify their existing documentation but might be unable to have close contact with third parties during these uncertain times.
“The retrospective effect of this legislation should also give comfort to those who made emergency Wills and had to take a pragmatic approach to the signing process whilst we awaited further guidance and legislative change.”