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Can the signing of a Will be witnessed virtually?

View profile for Joanne Druce
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How has recent legislation adapted to cope with the onset of Corona Virus?

There has been a significant rise in the number of people wanting to organise their financial affairs by preparing their Lasting Will and Testament since the outbreak of Covid 19. Although we would never have liked to see the arrival of this pandemic, it is, to some extent, a relief that people are dealing with such matters now.  We have a very low percentage of people making Wills in this country which exposes them to the risk that their assets will not go to who they wanted them to, indeed if you die intestate (without leaving a Will) your money and assets may even go to the Crown!

Making a Will and getting your affairs in order legally is something we would always advocate, it saves heartache and provides peace of mind whilst also having the benefit of Inheritance and Capital Gains Tax Planning.

Historically in order for a Will or Codicil to be valid, the signing formalities must be carefully adhered to as set out in Section 9 of the Wills Act 1837 which states: 

The signature is made or acknowledged by the testator (the person making the Will) in the presence of two or more witnesses present at the time

The requirement for the physical presence of two witnesses was therefore particularly problematic in light of the social distancing rules and for people who were self-isolating.  As a result, the Government have amended the legislation under the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 to permit the remote witnessing of Wills through virtual methods such as video conferencing. This came into effect from 25 September 2020 and applies retrospectively for Wills made since 31 January 2020 except for cases where a Grant of Probate has already been issued or an application for a Grant of Probate is already in progress. Whilst this is a temporary amendment, it is proposed that the new rules shall remain in place until at least 31 January 2022.

This is a major step forward in tackling the problem of the need for physical presence but caution should be applied as this new method opens up the risk of falling into possible pitfalls and potential risks. Some of the requirements are set out below.

  • The “line of sight” requirement remains and the signatures should be actually observed i.e. seeing the head and shoulders of a person will not suffice.
  • The witnesses and testator should be able to clearly see each other.
  • The type of video conference is not important but a reliable internet connection is.
  • There is a risk that remote witnessing may give rise to cases of undue influence, due to the inability for the witnesses to see other individuals who may be physically present with the testator. It is therefore suggested that the testator is asked to show the camera around the room.
  • The signing should be ‘live’; witnessing a pre-recorded video is not permitted.
  • Electronic signatures are also not permitted.
  • The Will-signing should be recorded.
  • The Will should remain as one document. Accordingly the signatures or initials of the testator and witnesses should be made on each pages of the Will, so as to confirm that the Will is a complete document. After the testator has signed the Will in the virtual presence of the witnesses, then the original copy will need to be sent to the witnesses for their signature. However this gives rise to a risk of the Will being lost or damaged, or the testator dying before the Will is signed by the witnesses. It is therefore recommended that the Will is sent to the witnesses as soon as possible and by secure delivery.
  • The attestation clause should reflect that the Will was witnessed remotely.
  • Any solicitor overseeing the process should prepare a full attendance note.
  • The testator should re-sign the Will in the traditional way as soon as practically possible.

As lawyers we will always exercise extreme caution whilst using this method as we appreciate there is a great risk of undue influence and capacity issues.

During the pandemic we have continued to witness the execution of Wills in the testators presence under the social distancing rules where possible. Our team have had months meeting clients in driveways, car parks and in gardens to name but a few. Essentially we whilst we welcome the new legislation it should be seen as an alternative as a last resort. It is important to note that when practically possible the testator should re-sign the Will in the traditional way.

If you have any questions, would like advice on the preparation of your Will or need to have Lasting Powers of Attorney in place, advice about  Probate,Tax, Trusts, Care Home Costs and Estate Planning. Please do not hesitate to contact us. We have the experienced team on hand along with the reputation for being compassionate, caring and approachable.