During the Covid 19 crisis, many more people have been thinking about writing or changing their will. But a major concern has been how to get the will witnessed correctly during a time when we are all supposed to be socially distancing and in some cases socially isolating.
To be valid, a will must be signed by the testator (the person making the will) in the joint presence of two independent witnesses who must then sign in the presence of the testator. In addition, as the witnesses must not be anyone who inherits (nor their partner) the witnesses may have to come from outside the household.
Although, there are no cases on the point, the courts have always held that ‘presence’ requires a line of sight and while it is arguable that remote witnessing via video link is already allowed under the current legislation (even if not anticipated when the 1837 Act was made), the new legislation is intended to make the situation clear. Certainly until this new legislation came into force, the guidance from all practitioners was that physical presence was required.
This new legislation is contained in an Order which came into force on 28 September 2020 and applies to wills made between 31 January 2020 and 31 January 2022. Essentially, it varies the requirement of ‘presence’ (for the testator and witnesses) to include virtual presence by means of video conference or other visual transmission as an alternative to physical presence. All the other formalities and legal requirements for execution of a will remain in force. It is intended that remote witnessing should only be used where physical witnessing is not possible.
So, what is involved? Essentially, the testator signs while being watched remotely by the two witnesses and then the will is delivered to one of the witnesses, who signs while being watched by the testator and the will is then delivered to the second witness who does the same. It sounds reasonably straightforward; but
- If the testator is so incapacitated that they are not able to arrange signing in the physical presence of two witnesses, (possibly through a window and/or more than two meters apart) is it likely they will be able to deal with the technology required, possibly on three separate occasions. If the testator dies before both witnesses have signed the will, it will not be legally valid.
- The testators and witnesses must all sign the will itself; it cannot be signed in counterpart. So that may require the will travelling between three different addresses to complete the execution.
- Electronic signatures are not permitted.
- Witnessing pre-recorded videos of the signature of the will is also not permitted. It must all be done in real time and in each case, the testator and the witnesses must be able to see the whole person and not just the head and shoulders or just the hand holding the pen. Ideally, the parties should be able to hear each other too, so an audio link would be advisable.
- If the video link is lost part way through the process, it is not fatal, but ‘acknowledging’ the signatures is then required, once the link is restored.
- All of the recordings should be retained in case of a later challenge to the validity of the will, but in what format and how can it be certain that the technology won’t become obsolete?
- It will be very difficult to be certain that the testator had capacity and was not being coerced into signing the will when the signing is being done remotely. It seems quite possible that wills that are executed in this way may be challenged later on grounds of undue influence, lack of knowledge and approval and/or duress, apart from issues relating to following the procedures correctly.
So while video witnessing may sound like a good alternative, in an era of social distancing and when many of us use smart phones, the reality is that this is a last resort where the usual form of witnessing is absolutely impossible.
Please do not attempt to use the video procedure for signing and witnessing a will without taking proper legal advice. If you want more information on any of the issues raised in this blog, please contact a member of the Wills and Probate team on 0808 252 5231 or request a call back online.