Charlotte Searle
The Government has announced that legislation is being introduced which will enable Wills to be validly witnessed by video-conference. In an area of law that remains unchanged since the Wills Act 1837 came into force, this is a significant development. The Wills Act 1837 requires a valid Will to be signed by the testator in the presence of two persons (who are not beneficiaries of the Will) who then also sign the Will in the presence of the testator.
Due to restrictions in place to prevent the spread of Coronavirus, people shielding or self-isolating have faced difficulties signing a new Will, because it involves being in the presence of two other persons. Options under the existing legislation have been for signing to take place whilst maintaining a social distance, allowing witnesses to watch the testator sign through a window, from an adjacent room through an open door, or in the garden/on a driveway.
The new legislation is intended to allow Wills to be witnessed by video conferencing, provided the witnesses have a clear line of sight of the testator signing the document and they are aware that they are being asked to witness the signing of a Will. Although this might appear to be a simplification of the Will signing process, in practice it is likely to be more complex than a straightforward signing in the physical presence of witnesses.
The Government is not permitting the witnesses to sign a counterpart or copy of the Will. After the witnesses have watched the testator sign, the Will must be physically delivered to each witness, so that further video conferences can then take place as they sign the document. The Government guidance suggests that this should be done “preferably within 24 hours,” which would require a courier who can collect the Will and deliver it to the witnesses or involve the risk of the original document being lost by other delivery methods. If the person making the Will dies before the witnesses receive the Will and join a video conference to also sign it, it would not be valid. This process requires multiple video conferences, clear and correct acknowledgements of the process being followed by all parties involved and the disclosure of the whole Will to each witness.
Regardless of the way in which the Will is signed, all other conditions for a valid Will remain. The person making the Will must have mental capacity, have knowledge of the contents of the Will and approve the terms. It therefore remains as important as ever that a professional has checked and recorded the instructions given by the person making the Will and has assessed their capacity. It might also be advisable to change the Will itself, to state that the signing is to be witnessed by video conference.
This change to the law is anticipated to be temporary – if and when the legislation does come into force, it is only expected to apply until 31 January 2022. Best practice will remain for the person making the Will to sign the Will in the physical presence of the two witnesses. Although signing by video conference might appear to provide a convenient way forward, extreme care will be required to ensure that all formalities for making a valid Will are met. Rather than being a new era in the way in which Wills are witnessed, this measure should be seen as offering emergency assistance in extreme cases where there is no alternative for putting in place a valid Will.
Neale Turk LLP has been providing local, friendly, expert legal advice for over 50 years. For advice on Wills, Estates and Court of Protection matters contact Charlotte Searle, a solicitor and fully qualified member of the Society of Trust and Estate Practitioners (STEP), the Association of Contentious Trust and Probate Specialists (ACTAPS) and Solicitors for the Elderly (SFE).