Video-witnessed Wills: The changes explained.
Liz Woodward – Wills & Probate Executive
As set out in the Wills Act 1837, for a Will to be valid it must be signed in the presence of two witnesses who must not be related to the Testator (person who is making the Will) or anyone else mentioned in the Will. This has caused problems for those who are having to self isolate or who are shielding.
The current situation with the Covid-19 pandemic has brought the importance of making a Will to the forefront of people’s minds and the Government is aware that with those who are having to self-isolate or shield it is not always possible for them to sign their Wills in the physical presence of two witnesses; they have made the decision to vary the Wills Act 1837 with a temporary law which states that where Wills must be signed in the presence of two witnesses this can be either physical or virtual using a video link such as Zoom or FaceTime. The new legislation should be in place by September 2020 but it is to be backdated to 31st January 2020 and should stay in place until 31st January 2022, although that date could be extended if the current situation with Covid-19 continues.
There is a risk to signing a Will in this way, if the Will is not properly executed it could be challenged that it is not valid should a claim be made against the Estate in the future, so wherever possible the Will should be signed in the conventional way in the physical presence of two witnesses.
The Government have provided guidelines on how the Wills should be virtually executed. They have advised that the virtual meeting should be recorded, the Testator should be alone when they sign and should be clearly visible to the witnesses who should be able to see the signature being made and not simply the Testator’s head and shoulders. The front page of the Will should be held up to the camera and then the page that is to be signed so that the witnesses are aware of the document being signed. Once signed the signature should also be shown to the camera. The witnesses should then sign the Will, preferably within 24 hours of the Testator signing, although it is recognised this may not be possible for example if the Will needs to be sent via the post. The signing of the Witnesses should also be recorded by video link with the Testator so that the Testator can clearly see them sign. When signing each party should acknowledge to the other parties that they have seen them sign and that they are aware that it is the Will that is being signed. If it is not possible for the Witnesses to be together then the process needs to be repeated for the second witness. A copy of the recording will need to be kept securely as it may be required should the Will be contested.
Wherever possible a new replacement Will should be executed as soon as possible in the conventional manner with the Testator and witnesses all present at the same time.
If you would like more information about this or about making or updating your Will then please contact a member of our Wills and Probate Team here.