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Wills go virtual



The legislation setting out how Wills should be signed dates back to 1837. The Wills Act 1837 provides 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.

For the last 183 years this has worked perfectly until Covid-19.

Impact of Covid on legislation

Social distancing, shielding and self-isolating has in some cases made it impossible for a Will to be signed and witnessed, therefore making it necessary for the Government to introduce new legislation and amended the Wills Act 1837.

What has changed?

This amendment which came into force on 28th September 2020 now allows people to use video-conferencing technology for the witnessing of Wills. The new legislation is retrospective and applies to Wills made since 31st January 2020 (which is the date of the first Covid case in England & Wales). The only exception will be for Wills where a Grant of Probate has already been issued or has been applied for.

The amended legislation may remain in place until 31st January 2022, although this may change depending on the developments with 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 January, while the legislation remains in force, 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.

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.

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.

Other issues which may emerge are, as follows:

  • The testator may die before the process 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 is now a legitimate way to prepare 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, other safe options are available instead of video-witnessing.

As long as the Will is signed in the ‘clear line of sight’ (and all other requirements are retained), the validity of the Will would be preserved. So, 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 video-witnessing of Wills is a welcome change in the legislation, 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 today on 01749 342 323 or email kat.king@mogersdrewett.com