From September 2020, Wills which are witnessed using video technology will be legally valid. This means witnesses can be virtually rather than physically present, when someone signs their Will.
Currently, the law requires two witnesses to be present when a Will is signed. Office closures and social distancing measures introduced due to COVID-19 has made executing a valid Will especially difficult for people who are shielding, self-isolating or wish to keep their affairs confidential. The new legislation aims to make this easier; however, you should still execute your Will with two witnesses physically present if you are able to do so.
Guidance issued with the new legislation confirms that any type of video technology or platform can be used. The critical aspect is that the person making their Will and the two witnesses should have clear video and audio of each other. In particular, the witnesses must have a clear line of sight of the testator signing the Will - not just their head and shoulders.
Ideally the two witnesses should be physically present together, but if this is not possible then a three-way video call can be used. The signing must be 'live' in real time; pre-recorded videos of a Will being signed which are then sent to the witnesses will not be valid.
Once the testator has signed their Will, the original document should be taken or sent to the witnesses to sign, as soon as possible. Again, the witnesses should sign the Will on a video call where they and the testator can see and hear each other. The witnesses must sign the original Will; signing a copy or a counterpart version or using electronic signatures will not be valid.
Once the testator or a witness has signed the Will, the parties should acknowledge that they have seen each other sign. This must be done audibly, not via a typed 'chat' message. If possible, the video signing and witnessing should be recorded and the recordings retained.
Backdated, with certain conditions
The new law will be backdated to include Wills that were witnessed via video from 31 January 2020 and the provisions will remain in force until January 2022, but may be extended if necessary. The law will also apply to making Codicils, but it cannot be used to confirm the validity of Wills where a grant has been obtained or a grant application has been submitted.
As well as complying with the new legislation, the other formal requirements for a valid Will must still be fulfilled. There must be two witnesses over the age of 18 who sign the Will, and they cannot be anyone who stands to benefit from the Will, or their spouse or civil partner.
Progress - with caveats
The new law is another reminder of how the COVID-19 pandemic is rapidly modernising outdated legal practices. However, the challenges posed by technology, such as poor connections and videos freezing, may mean the Will signing process is still difficult for some.
Video witnessing may make it harder to identify whether the testator has capacity, if they are being unduly influenced or are signing under duress. There may also be more opportunities for identity theft and fraud, with the testator purporting to be someone they are not.
It is essential that witnesses are chosen carefully to ensure the Will is valid. A practitioner who drafted the Will and has experience in identifying and mitigating any risks would be best placed to act as one of the witnesses.
These changes make it even more important that you seek advice from a professional to draft and execute your Will. Errors at this stage can cause significant problems further down the line.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.