How to have your will witnessed remotely by video18 Mar 2021
Covid-19 has put paid to normal routine and practice across most spheres of our lives. Even long-held legal procedures have not escaped the adverse impact of covid-19, such as the need to sign a Will in the presence of witnesses.
Our specialist Wills solicitors can help clients with their Will requirements during this health crisis. Giving your solicitor ‘remote’ instructions for a Will during a pandemic is not usually difficult, but what then? It is virtually impossible for individuals who are shielding, or self-isolating because they have been exposed to covid-19 or suffering at home or in hospital with covid-19, to have other people in the same room to witness their Will (or Codicil).
Then there’s the strict social distancing requirements and lockdown rules which prevent even the healthiest of people from mixing in each other’s homes. Clients unable or unwilling, for health and safety concerns, to visit offices has had a profound impact on how solicitors can help their Wills clients.
The Wills Act requirements
Witnessing Wills is a key area that had to adapt to covid-19. But a formal amendment to the law was required before any flexibility was allowed. The crux of the problem is: your Will is invalid if not signed and executed in accordance with strict legal requirements.
This all dates back to the Wills Act 1837 which states that Wills must be signed by the testator in the presence of two witnesses who must also sign the Will in each other’s presence. These rules have stood the test of time for a reason: they significantly reduce the risk of fraud and undue influence.
When covid-19 arrived, debate began as to whether ‘in the presence of’ is restricted to ‘physical’ presence only. This meant there was the risk that without a formal amendment specifically allowing non-physical ‘presence’, the number of contested wills in future could rise steeply.
At the same time, the numbers of clients requiring a Will as people were confronted by their own mortality, increased by around 30 per cent in the early weeks of the pandemic alone. Continued compliance with the 1837 rules proved increasingly challenging for clients and solicitors (and impossible for some).
The government recognised this and, in July 2020, introduced a temporary amendment in the rules.
The amendment means a Will is legally valid if witnessed virtually via ‘video conferencing or other visual transmission’, for example, using Skype, Zoom or Microsoft Teams (section 8 of the Electronic Communications Act 2000). Note that this only applies to England and Wales. Importantly, this was also backdated so that Wills remotely witnessed via video since 31 January 2020 may be valid.
However, if the Will can be executed in accordance with traditional requirements, it must be. In other words, the temporary amendment governing remote Wills witnessing should only be followed if the Will cannot be executed in person.
Under the rule change, ‘presence’ may now include virtual presence via video link. Helpfully, the Ministry of Justice also issued detailed guidance on how remote Wills should be performed in practice. If this guidance is not followed, there is a risk the Will could be legally invalid.
To ensure your Will is legally valid via remote video witnessing, we strongly advise you to follow these 8 key steps. Doing so will mitigate the risk of a contested wills dispute after your death.
1. The video-link – Your video platform of choice is not important but whatever you opt for, it must ensure compliance with the rules.
2. Record it all – It is strongly advised you record the video procedure to protect yourself in the event of any future claim. However, it must be recorded contemporaneously – a pre-recorded video of you signing the Will, then subsequently witnessed later on, will not be valid.
3. Clear visibility – Check you can see the witnesses writing their signature on your Will (not just their head and shoulders) – even if they are on video links in separate locations.
4. Hold the page – Display the front page of your Will to the camera so that your witnesses can see it, then do the same with the signature page.
5. Proving identity – If you don’t know the witnesses, it’s advisable to show them your passport or driving licence.
6. The witnesses’ role – Ask them to confirm they can hear what’s happening, they understand the role they are undertaking in witnessing your Will – and that they can see you as you sign the Will. The will should also be dated on the date you sign it.
7. Send the Will to the witnesses – Do this as soon as is practical, ideally within a day, to avoid the potential for problems – particularly if the Will-maker is elderly or very sick. Remember, the Will is not yet legally valid. If your witnesses cannot be in the same place when they witness your Will, it will need to be sent onto the second witness.
8. Witnesses sign the Will – Recording this stage is just as important. As before, the parties must be able to see and understand what’s happening and the witnesses should hold up the Will to the camera. They can then either sign it in your full view – or sign it and hold up their signature and confirm it is theirs.
If the above stage needs to be repeated for each witness, the other witness must have a video link to ensure they can see and hear the process.
The attestation clause in your Will should ideally reflect the fact that video witnessing is being utilised to give it legal effect.
Can I sign my Will electronically?
In short, no. The MoJ has made it clear that a physical signature is still required due to the risk of fraud or undue influence.
Similarly, the use of counterparts (ie two identical copies of the Will) is not allowed in video witnessing. The one Will document must be signed by all parties.
Is recording these stages enough?
Recording the proper video witnessing of your Will is probably the strongest evidence you can have that your Will is legally valid.
That said, it is always worth keeping a contemporaneous written record of what happened and who was involved.
Mitigating the risks for vulnerable clients
Some people are particularly at risk of being manipulated by family members to make a Will which is not in their best interests. The amended law, in combination with the detailed official guidance, goes a long way to mitigating the risks to the vulnerable.
However, it is not possible to rule out situations where for instance, a third party is hidden from camera view and coercing the individual, or manipulating the video to make it appear the rules have been complied with, or tampering with the Will document itself.
If you have any concerns that you or a loved one are being pressurised to make a Will you’re not happy about, contact us urgently for advice. Our team can advice on contesting a will and what facts need to be present in order to bring a claim.
How long will video witnessing last?
The formal amendment allowing video witnessing is intended to be temporary, but for as long as it is required. Government has said that it may last until 31 January 2022, but it really depends on what course the pandemic takes.
When the rules change, we will report it here.
To speak to a member of our wills team please fill in an online form.