We had previously informed you that on 25 July, the government announced that the law would be changed to allow for witnessing wills via video. Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 was laid before parliament earlier this month to temporarily amend the Wills Act 1837 and it came into force on 28 September.
This temporary change in the law will remain in force until 31 January 2022 although this may be shortened or extended if deemed necessary. The measures have also been backdated to 31 January 2020 to ensure that any wills witnessed during the pandemic will be treated as valid.
How should a will witnessed via video link be witnessed?
The government’s own guidance says that a will witnessed remotely should follow a process similar to the below. The will maker in the explanation below means the testator rather than the will writer.
- The person making the will ensures that their two witnesses can see them, each other and their actions.
- The will maker or the witnesses should ask for the making of the will to be recorded.
- The will maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well.
- By law, the witnesses must see the will maker (or someone signing at their direction, on their behalf) signing the will. Before signing, the will maker should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders.
- If the witnesses do not know the person making the will they should ask for confirmation of the person’s identity – such as a passport or driving licence.
The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.
- The will document should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document.
- A longer period of time between the will maker and witnesses signing the will may be unavoidable (for example if the document has to be posted) but it should be borne in mind that the longer this process takes the greater the potential for problems to arise.
- A will is fully validated only when testators (or someone at their direction) and both witnesses have signed it and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the will maker dies before the full process has taken place the partly completed will is not legally effective.
- The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign.
- Both parties (the witness and the will maker) must be able to see and understand what is happening.
- The witnesses should hold up the will to the will maker to show them that they are signing it and should then sign it (again the will maker should see them writing their names, not just see their heads and shoulders).
- Alternatively, the witness should hold up the signed will so that the will maker can clearly see the signature and confirm to the will maker that it is their signature. They may wish to reiterate their intention, for example saying: “this is my signature, intended to give effect to my intention to make this will”.
- This session should be recorded if possible.
If the two witnesses are not physically present with each other when they sign then step 4 will need to take place twice, in both cases ensuring that the will maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.
The government themselves, along with professional bodies such as STEP, urge that remotely witnessing the will should only be a last resort when physically signing the will is not possible. Witnessing a will physically will be a much more simple process and can still be completed whilst complying with social distancing where care is taken. The additional steps that need to be taken with video witnessing could lead to the will being invalid if not completed correctly. There may also be a heightened risk of the will being challenged due to fraud, undue influence, duress, capacity or identify theft in these circumstances.
A special attestation clause should be included where a will is to be witnessed via video link and we should be informed in writing if the will is to be witnessed remotely so this can be included. We will also provide written signing guidance with the final documents.
The witnessing must be completed in real time, witnessing pre-recorded videos is not permissible.
It is ideal that every process of the signing process is recorded as per the government’s advice, although this may not be possible due to technical difficulties. The consent of both the testator and the witnesses should be obtained before the witnessing is videoed. If videoing of the witnessing is not possible, you should keep clear attendance notes.
Whilst remote witnessing is possible, electronic signatures of wills has not been made valid. Wills must still be physically signed by both the testator and the witnesses. The same document must be signed by the testator and by the witnesses. It is not valid for two identical copies to be drawn up and for the testator to sign one copy and for the witnesses to sign another.
Where a testator is unable to sign the will, the will can still be signed by another on behalf of the testator in their presence but that presence must be physical. The witnessing can however still be completed remotely.