Video-call Will Witnessing to be made legal during Covid-19 crisis

New lockdown Will witnessing rules

New lockdown Will witnessing rules
New rules will allow vulnerable people to use video-conferencing technology for the witnessing of Wills

The Ministry of Justice announced last Saturday that a statutory instrument will be laid before parliament in September temporarily permitting Wills which have been witnessed remotely (without witnesses being physically present) in England and Wales. The law will be backdated to cover Wills signed since 31st January 2020 (the date of the first registered Covid-19 case in England and Wales) and will remain in place until at least January 2022. This is to help people who are socially distancing or vulnerable to make a Will without the need for physical contact during the coronavirus crisis.

The current rules governing Will witnessing were set out in the Wills Act 1837 and state that a Will must be signed in the presence of two or more witnesses at the same time. The expected change will allow Wills to be witnessed virtually over a Zoom or FaceTime call, for example, as an alternative to physical presence. There will be some rules that need to be followed closely and guidance has been published on the Ministry of Justice website.

When do the new rules apply?

Although the legislation will be backdated to Wills made since 31st January 2020 it will not apply to cases where a Grant of Probate has already been issued or the application for a Grant is in the process of being administered. This would mean that if someone made a video-witnessed Will in February and then died shortly afterwards, at the time this Will would not have been valid. If the executors proceeded with applying for a Grant of Probate with a previous valid Will and have already had a Grant issued they cannot now ask for the video-witnessed Will to be substituted for the proved Will.

The guidance also states that where people can make Wills in the conventional way they should do so.

None of the existing requirements in the Wills Act 1837 are changed by the new law. The new rules only add to the existing rules and all of the usual Will making requirements still need to be met, such as the person making the Will must have testamentary capacity or a beneficiary (or their spouse) cannot witness a Will without losing their gift under the Will.

Clear line of sight

The guidance also clarifies what "clear line of sight" means when witnessing a Will which has been a troubling issue for lawyers. Both the person making the Will and also the witnesses should have a clear line of sight of each other signing which could include witnessing through a window or an open door, from a corridor or adjacent room or even outdoors from a short distance.

The main addition to the law is where a Will is video-witnessed. The type of video-conferencing or device used is not important as long as the person making the Will and the two witnesses all have a clear line of sight of the writing of the signatures. The witnessing must be carried out "live" in real time and it cannot be pre-recorded. Electronic signatures are not currently allowed to be used.

So what needs to actually happen?

Firstly a clause will be included in the Will to reflect the method of witnessing such as "I [[ ]] wish to make a Will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely". It may also be a good idea to amend the attestation clause at the end to show that the Will has been signed remotely.

A method of video-conferencing should be used where the sound and video can be seen and heard clearly. The picture must show the head and shoulders of the participants and also where the writing is going to take place. Then one of the participants should record the witnessing. If the witnesses do not know the person making the Will they should ask them to verify their identity such as by showing a passport or driving licence. It is preferable for the two witnesses to be together but if not a three way link is also possible.

  1. The Will maker will hold up the front page of the Will so the witnesses can see it and then turn to where they will witness so they can also see that page.
  2. The witnesses should confirm that they can see and hear and also acknowledge their role in witnessing the Will.
  3. The will maker then signs ensuring the witnesses have a clear sight of the signing.
  4. The Will should then be taken to the two witnesses for them to sign, ideally within 24 hours of the will maker signing. A longer period may be acceptable (for example if it needs to be posted) but the longer the process the more likely there may be issues. The Will is only valid when all parties have signed and so any delay is not advisable.
  5. Once the Will is in the possession of one or more of the witnesses a new video-link is set up again with the will maker and both witnesses. Again all parties must be able to see and hear as before and it should preferably be recorded. The witnesses will hold up the Will to the will maker to show them the page they are signing and they should then sign it in clear sight of the other parties. If the two witnesses are not together then step 5 should take place again when the Will is in the possession of the final witness.
  6. The Will should then be returned to the will maker for them to retain and the video-recordings of the signing of the will maker and the witnesses should be retained, perhaps on a flash drive retained with the Will.

Although this is a useful extension of the rules of Will signing in the current pandemic it should be used carefully. It will certainly help some people make Wills safely who would otherwise be at risk, but it should really only be considered when other options are impossible. Strict precautions should be taken to avoid the possibility of fraud or undue influence and any usual requirements when signing a Will should also be met.

If you would like further information or to speak to our Wills, Trusts & Probate Team about making a Will or any other issue with managing your personal affairs please contact our Wills, Trusts & Probate team on 01733 882800 or email info@hcsolicitors.co.uk.

Author: Fiona Prince LLB TEP, Associate Solicitor

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.