Irwin Mitchell | Things to Consider When Witnessing Wills Over Video Call

The current law on making Wills dates back nearly 200 years - to the Wills Act 1837.

Section 9 of that Act sets out the requirements for making and witnessing Wills, and they’re very much still in force. For a Will to be valid, it has to be signed in front of two witnesses at the same time. They then have to sign it in the presence of the testator (the person making the Will). The government has published guidance to confirm that the Wills Act will be amended to state that people will, for a temporary period, be allowed to use a video link to witness a Will being signed. During the pandemic, there have been significant difficulties brought about by social distancing and self-isolation, and this law amendment should make it easier for people who are more vulnerable, or confined to a bed or hospital, to still make their Will.

The new legislation will apply to Wills made since 31st January 2020, so it’s retrospective except in cases where a Grant has already been issued or an application for a grant is already in progress. It’s proposed that the new legislation should be active until 31st January 2022.

Although this may appear to be a major step forward in bringing very, very old legislation up to date, there are a number of things to consider. The option of video link witnessing should only be used as a last resort where traditional and conventional methods aren’t possible.

Where one or both witnesses can’t be physically present at the time of signing, then either a two or three way video link can be arranged. The type of video conferencing or the device used isn’t important as long as the testator and both the witnesses have a clear line of sight of the writing of the signatures. It’s also recommended that the process be recorded and that the testator states at the outset that they wish to make a Will of their own free will and sign it here before these witnesses, who are witnessing remotely.

Once the testator has signed the Will, it should be taken or posted to the first or second witness (depending on whether one witness was present with the testator at the time). The witness should then sign, again on video link with the testator and the other witness.

Witnessing a pre-recorded video of the signature of the Will isn’t legally acceptable. The witnesses must see the Will being signed by the testator and the testator must see each witness sign in “real time”. The same Will must be signed by all three parties, and the signing of counterpart documents or the use of electronic signatures isn’t allowed.

If the video link gets lost or frozen during the signing process or if one of the parties moves out of view, then the testator or the witnesses need to acknowledge their signature to the other parties by holding up the Will and showing the completed signature to the others.

There’s obviously no case law yet regarding this area. Clients and practitioners should exercise extreme caution if this method is used. It lends itself to greater risks of undue influence, duress, abuse, capacity issues and challenge as to whether the procedure has been followed correctly. Confidentiality might also be an issue as the Will would need to be delivered or posted to the witnesses who would then have an opportunity to read it, or if the Will needs to be discussed or read over to the testator, prior to signing. Therefore, the choice of witnesses needs to be made carefully, taking into account it can’t be a beneficiary of the Will, or anyone married or in a civil partnership with a beneficiary.

Although traditional and conventional methods of Will signing and witnessing are presenting challenges at the current time, it’s still preferable to explore these options first and prior to using the video link alternative. Traditional methods which adhere to current social distancing requirements can include witnessing through the window or an open door of a house or vehicle; from a corridor or other room into an adjacent room with the door open; or outside, for example, in the garden or over a wall.

If a client expresses an interest in using this form of witnessing, or there’s no other alternative, then it should be recommended that they take legal advice on the process and the necessary safeguards to ensure less likelihood of challenge to its validity. It’s also recommended that if this route is used, that as soon as circumstances allow, the Will should be re-signed using the conventional method.

Published: August 2020

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August 2020

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Things to Consider When Witnessing Wills Over Video Call

August 2020

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Things to Consider When Witnessing Wills Over Video Call

August 2020

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