“Is this thing on?” ─ Wills witnessed via video-call to be made legalAugust 20, 2020
What are the latest changes to the Wills Act?
As a result of the Covid-19 pandemic, an increased number of people have understandably created or made changes to their Will to ensure their affairs are in order and their loved ones are protected in the event of their death.
However, for those who are in a high-risk category or are self-isolating, it can be challenging to execute their Will in the physical presence of two independent witnesses. Previously, this was a legal requirement under the Wills Act 1837, the UK’s 183-year-old legislation which sets out the legal formalities that need to be satisfied in order to make a Will valid, and to protect people against undue influence and fraud.
In an attempt to overcome this challenge, the government has recently announced that Wills witnessed remotely via video-link are to be made legal under a temporary amendment to the Wills Act 1837. The changes are due to come into effect in September 2020 for an initial period of two years. However, the amendment will apply retrospectively, so that any Wills made and witnessed remotely since 31 January 2020 (the date of the first registered Covid-19 case in England and Wales) are still legally valid.
How will the new changes work in practice?
The Government have issued a four-stage process to provide guidance on the practicalities of signing and witnessing a Will by video-link. This is summarised as follows:
- Once connected via video-link and recording, the person making the Will should hold the front page of the Will up to the camera to show the witnesses, and then turn to the page they will be signing and hold this up too. Before signing, the Will-maker must ensure the witnesses can see them actually writing their signature on the Will.
- The witnesses should confirm that they can see, hear, acknowledge and understand their role in witnessing the signing of a legal document. If the witnesses cannot be physically present with each other, 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 no more than 24 hours after the person who is making the Will has signed the document.
- The two witnesses must then sign the Will via video link with the Will-maker. The witnesses should hold up the Will to the Will-maker to show them they are signing it, or hold up the signed Will so that the Will-maker can clearly see their signature. If the two witnesses are not physically present with each other when they sign, then this stage will need to take place twice.
What are the potential issues with the new changes?
Whilst this is clearly a useful development in the law, the Government do emphasise that ‘the use of video technology should remain as a last resort, and people must continue to arrange physical witnessing of Wills where it is safe to do so’. A number of issues come to mind when considering the practicalities of remote Will signing, including:
- Time. Due to the length of time it will likely take to pass the Will between the Will-maker and two witnesses (along with the potential delays when posting the Wills by mail), there could be a real risk of the Will-maker dying before the Will is legally valid, meaning their estate may not pass how they would have wanted.
- Potential claims and disputes. It should also be noted that, if a Will was not legally completed due to any delay by the witnesses, the beneficiaries under the uncompleted Will could likely make a claim against the witnesses for what they would have inherited if the Will had been legally completed without delay.
- Potential abuse of technology. When witnessing a Will using video-link, it will be much harder to ensure that the Will-maker is not being pressured to sign by someone else in the room behind the camera. Witnesses are therefore advised to exercise strict caution to ensure that the Will-maker is acting by their own free will.
Although this is a welcome development for more flexible Will-making, and indeed a necessity for those who are most at risk during the pandemic, it is our view that this should be used as a last resort, and it is far more sensible to stick to the original law and have your Will professionally drawn up and executed in the physical presence of two witnesses, wherever possible.
This can be done successfully, whilst adhering to social distancing, by signing in your front or back garden, in another communal space such as a park on different benches, or even through a window.
If you are thinking about making a Will or amending an existing one, please feel free to get in touch with our Wills team who can discuss your options with you.
We are pleased to offer a free 30-minute consultation on a non-obligation basis, to discuss your requirements or carry out a review of your existing Will. Following this, we can provide you with a fixed-fee quote for carrying out the work.
Our offices have reopened and we can arrange an appointment (with prior notice) to meet with you face-to-face on set days, or we can take your instructions by way of video or telephone conferencing – whichever you prefer.