Posted on 29.7.20
The Ministry of Justice has recently announced a change in the law to the witnessing of Wills to deal with the immediate issues of the COVID-19 pandemic. As part of the Wills Act 1837, a valid Will must be signed by the person making the Will in the presence of two witnesses and signed by them in the presence of the person making the Will.
The coronavirus outbreak has meant that the meaning of the word “presence” has become a great practical challenge especially as witnesses cannot benefit from a Will. Therefore, ruling out people living in the same household. As such, the Ministry of Justice has announced a temporary relaxation to the rules, with effect from September 2020, to allow video-witnessed Wills in England and Wales. This will remain in place until at least 31st January 2022.
So, what does that mean?
Wills still need to be signed by two witnesses who are not beneficiaries, but the Will maker’s signature can now be witnessed remotely using video conferencing tools such as Skype, Zoom, and FaceTime. The type of video-conferencing or device used is not important, as long as the person making the Will and their two witnesses each have a clear line of sight of the writing of the signature.
Our experience in the current climate is that the people who require such assistance are often the most vulnerable and therefore more susceptible to undue influence and fraud. Whilst that’s not a new risk, it may be more difficult to ensure that the Will maker is alone in the room, or has the capacity to make the Will via a video connection.
The government has decided against introducing counter-part Wills as part of this temporary legislation. Therefore, where there are two witnesses not in each other’s physical presence multiple video meetings will be required so that each witness can sign the same original document as needed. This may result in new practical challenges arising such as the loss of the original signed Will, or the death of the Will-maker before the witnessing process of the Will has been finalised.
Electronic signatures will still not be permissible as part of this temporary legislation due to the risks of undue influence or fraud against the person making the Will.
Whilst video-witnessed Wills are a result of the recent COVID-19 outbreak, the key considerations remain unchanged such as ensuring that the Will-maker has the capacity and identifying any circumstances where undue influence is occurring.
An important practical point is to keep a detailed record of the video meeting as to what was said and what occurred. You may also consider recording a video of the meeting (with the consent of all parties). This would be useful evidence in the event that the Will was challenged on the ground of lack of due execution.
- STEP Briefing Note: Execution of Wills using video witnessing (England & Wales)
- Government Guidance on Making Wills Using Video-conferencing