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Background
On 25 July 2020, the Government announced that it would introduce changes in September 2020 concerning the requirements for witnessing Wills under the Wills Act 1837.
The proposal will pass into law under the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 later this month.
The law will apply retrospectively, from 31 January 2020, and temporarily, up to 31 January 2022 although this could be shortened or extended.
Current requirements
The current law requires that:
- a Will maker must sign their Will, or acknowledge their signature, in the presence of 2 or more witnesses present at the same time; and
- each witness must either sign the Will or acknowledge their signature in the presence of the Will maker.
The meaning of ‘presence’ has generally been understood to mean physical presence with a direct line of sight between the Will maker and the witnesses.
Proposed law
The new law extends the meaning of ‘presence’ to include presence by means of videoconference or other visual transmission.
In the current COVID-19 circumstances, where physical presence may not be appropriate or achievable, the modification of the witnessing requirements will allow Wills to be executed with greater flexibility and practicality.
How does it work?
The government has provided guidance on how individuals can properly execute Wills remotely, following the update in the law. This can be found here.
In summary, there will be up to five stages with at least two separate video calls:
- Preliminary steps – the Will maker ensures the witnesses can see and hear one another, the Will is identified, a line of sight between the Will maker and witnesses is established, and the identity of the Will maker is confirmed.
- The witnesses confirm they can see, hear, acknowledge, and understand their role in witnessing the signing of the Will.
- Once signed and witnessed, the Will should be taken to the two witnesses for them to sign (ideally within 24 hours).
- The witnesses must then sign the Will in the presence of the Will maker, again ensuring that all the parties can see and hear each other and the Will.
- If the witnesses are not physically present together at stage 4, this will need to be repeated for the remaining witness.
Potential pitfalls
As is clear from the above, the process of validly signing and witnessing a Will remotely is an involved process and there are still a number of other statutory requirements which need to be fulfilled in order to make a valid Will.
To mitigate the risks of a remotely witnessed Will being held invalid, the Will maker and witnesses should consider the following:
- Recording and retaining the video communications.
- Ensuring all parties can see the Will being signed – it is not enough to see just the head and shoulders of the signing party.
- It may be helpful for the parties to confirm their identity.
- The parties should clearly identify to one another the document and page they are signing by holding it up to the camera.
- Verbal confirmation of each stage of the signing is recommended.
- The use of an appropriately worded attestation clause reflecting that the Will was witnessed remotely.
- Counterparts are not permitted and so each party must sign the same original document.
- Electronic signatures are not permitted.
- Efficient transmission of the Will between parties is essential in order to mitigate issues of validity should the Will maker pass away or lose capacity before the witnesses sign.
- The Will should be dated on the day the Will maker signs.
- The video connection should be in real-time. If connection is lost, the Will maker can sign and then, once connection with both witnesses is restored, acknowledge their signature by showing this to the witnesses. This also applies if connection is lost when the witnesses are signing.
Looking ahead
The use of video conferencing to execute a Will should only be used if demanded by the circumstances, and preference given to Wills being physically witnessed. It is recommended that a video witnessing is followed by physical witnessing if and when this becomes appropriate.
There are numerous aspects of the video Will procedure that could raise questions concerning validity. For instance, whether the parties were explicit in their actions when signing the Will and whether they provided a sufficient ‘line of sight’ for the purposes of being present.
There are also further issues that could be beyond the control of the parties that might render the Will invalid. These could include the Will maker passing away or losing capacity before the Will can be witnessed.
It would not be unexpected if disappointed beneficiaries sought to challenge the validity of a video witnessed Will on any of the above grounds. Individuals and practitioners should, therefore, consider carefully whether it is appropriate for a Will to be witnessed remotely and ensure that this is followed, if possible, by execution in the usual way.
Whether video Wills remain a long term feature of estate planning beyond January 2022 remains to be seen. Like many of the changes precipitated by the COVID-19 pandemic, it would not be surprising if some form of video witnessed Will remained permanent.
If you would like to discuss or have concerns about the validity of an existing Will, please contact William Coon or Jasmine Ivory.
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