Long awaited, temporary legislation allowing the signing of Wills in England and Wales to be witnessed by video conferencing has come in to effect. In this article, Sam Dale considers the changes to the formalities of signing Wills as introduced by The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020.
Please note that this article was correct as at the time of writing (15th September 2020).
Existing law on making Wills
Prior to the introduction of the above legislation, the procedure for the making of Wills in England and Wales was set out in the Wills Act 1837.
Section 9 of the Wills Act set out some of the requirements for making and witnessing a Will as follows:
No Will shall be valid unless:
- it is in writing and signed by the testator [being the person for whom the Will is being prepared] or by some other person in his [or her] presence and by his [or her] direction; and
- it appears that the testator intended by his signature to give effect to the Will; and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either attests and signs the Will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness).
These requirements still remain in force.
The existing law required witnesses to have a "clear line of sight" of the Testator (the Will-maker) signing and must understand that they are witnessing and acknowledging the signing of the document.
During the coronavirus pandemic and in particular during lockdown, it was necessary to consider options with regard to how Wills can be witnessed, including through windows.
There was uncertainty as to whether the requirements under the Wills Act could be met by video-conferencing and many legal practitioners and indeed the Law Society took the view that Wills must be witnessed in person in the traditional way.
With the introduction of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, all of the legislation set out above also applies where a Wills is video-witnessed, removing any uncertainty as to the validity of Wills executed in such a manner.
What is the procedure for video-witnessing?
The Ministry of Justice Guidance explains the process of remote execution as follows:
- The Testator must ensure that their two witnesses can see them and each other and also understand what they are witnessing. The making of the Will needs to be recorded.
- The front page of the Will and the signature page should be held up to the camera to show the witnesses.
- By law, the witnesses must see the Testator (or someone signing at their direction, on their behalf) signing the Will and not just their head and shoulders.
- If the witnesses do not know the person making the Will they should see evidence of the person's identity (e.g. a passport or driving licence).
The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Where possible the witnesses should be present with each other but if this is not possible then they should be watching simultaneously via a three way video-link.
The Will then needs to be taken to the two witnesses for them to sign, ideally within 24 hours (although if the Will is posted this may not be possible). A Will is only valid when the Testator (or someone at their direction) and both witnesses have signed it and either been witnessed signing it or have acknowledged their signature to the testator. The Will would not be legally effective if the testator dies before the witnesses have signed the same.
The two witnesses then need to sign the Will. Ideally, the Testator should see both the witnesses sign and acknowledge they have seen them sign.
- The witness and the Testator must be able to see and understand what is happening.
- The witnesses should hold up the Will to the Testator to show them that they are signing it and should then sign it in full sight of the Testator.
- In the alternative, the witness should hold up the signed Will so that the Will maker can clearly see the signature and confirm to the Testator that it is their signature. Ideally, this witnessing should be recorded.
If the two witnesses are not physically present with each other when they sign then Stage 4 will need to be repeated. When each witness signs, the Testator and the other witness must be able to see and follow what is happening. Although it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.
The witnessing of a Will signing via a pre-recorded video is not permissible and as such, the witnesses must see the Will being signed in real-time.
Are the changes for video-witnessing permanent?
At present, the new legislation only applies to Wills made on or after 31st January 2020 and on or before 31st January 2022 (albeit this date can be changed or brought forward).
Can a Will be signed electronically?
When introducing the new legislation the Government chose not to allow electronic signatures due to risks of undue influence or fraud.
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.