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Witnessing wills remotely: changes to the law and key considerations

Gateley Legal

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Since the beginning of lockdown there have been many discussions about the possibility of relaxing the rules around the valid execution (signing and witnessing) of wills to accommodate the issues faced by social distancing, isolating and shielding.  The Ministry of Justice (MoJ) has now confirmed that the Wills Act 1837 will be amended to allow for remote electronic witnessing.  

 Lord Chancellor Robert Buckland said:

“We know that the pandemic has made this process more difficult, which is why we are changing law to ensure that wills witnessed via video technology are legally recognised… Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable.”

Under current law, a will needs to be signed a testator (the person making the will) in the physical presence of two witnesses who, in turn, both need to sign the will in the testator’s presence.  Since the pandemic started we have been working with our clients to invent safe ways to execute wills that will ensure this formality is complied with; whether it is organising meetings on driveways, in gardens or even though dining room windows! However, whilst this new legislation is in force, the ‘presence’ of those making and witnessing wills now includes a virtual presence by means, for example, of Zoom, Facetime or Skype.  The change is law is to be backdated to 31st January 2020 and will therefore apply to any wills executed from and including this date.  It is intended that the changes will be kept in place until 31st January 2022, or ‘as long as deemed necessary’ and therefore could be a shorter period.  

Many will welcome this change in the law, as it now puts emphasis on the line of sight as opposed to physical presence, which could go some way to help with those who have struggled to execute their wills safely during the pandemic.

However, care still needs to be taken to ensure that legal formalities are complied with, and in order to assist with this, the Government have provided some guidelines which include: 

  • A suggested starting phrase: ‘I [full name] wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’. 
  • Where possible the whole video-signing and witnessing process should be recorded and that recording retained.
  • The process must be in ‘real-time’ – witnesses cannot be shown a pre-recorded video of the testator signing and vice versa. 
  • Once the will is signed by the testator, it should ideally be sent to the witnesses to sign within 24 hours.  If the two witnesses are not in the same household the document will need to be sent to first witness and then the second straight after. The testator and witnesses must all be present to see the witnesses writing their signatures.  

As you can see from the few Government guidelines highlighted above, the process is arguably more convoluted than if the witnesses were physically present, and the MoJ have stressed that video witnessing really should be the last resort.
 
It will be interesting to see the uptake on the video witnessing and whether in reality is it a practical solution in this pandemic, only time will tell! 

More information

For more information regarding amendments to the Wills Act 1837, contact our expert listed below.

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