Concerns raised as Wills witnessed by video link are set to become legally valid

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There have been calls since the start of lockdown to allow the witnessing of Wills by video link. Somewhat late in the day, when we as a firm have constructed booths for the purpose of ensuring the safe witnessing of Wills under the existing law, the use of video link to remotely witness the document signing will become legal in England and Wales on a temporary basis from September. Two witnesses are still required, as is the case with any Will, and electronic signatures will not be permitted.

The legislation is being introduced in response to increasing numbers of people seeking to make a Will whilst shielding or self-isolating during the pandemic, both situations where physical witnessing is difficult to arrange. The measures will remain in place until January 2022 and be applied retrospectively to Wills made since 31 January 2020, except in cases where a Grant of Probate has already been issued in respect of the deceased person or the application is in the process of being administered.

The Government has emphasised that using video technology for this purpose should remain a last resort and that the physical witnessing of Wills should continue where it was safe to do so. In announcing the change, it has emphasised the need to use software of sufficient quality so that the process can be accurately witnessed and to ensure that the elderly and vulnerable are protected. As a firm we would still recommend witnessing under the old law, with two people physically present at the same time to witness the Will and, as set out above, we have constructed booths at our Peterborough office to ensure that Wills can be safely witnessed.

In addition to our concerns, several other voices within the legal profession have expressed some concern at the new legislation, warning that it could lead to an increase in disputed Wills. Potential pitfalls of video witnessed Wills that have been highlighted include the possibility that they may be lost or intercepted whilst in transit between the person making the Will (known as the ‘testator’) and witnesses and that undue influence may be applied to those signing by others who remain off-camera. Certainly the opportunity for a solicitor (or other witness) to be satisfied that no pressure has been applied is much diminished, especially if the process has also been conducted remotely.

Distanced witnessing – ‘clear line of sight’

The current law provides that the testator and their witnesses must have a ‘clear line of sight’ of each other when signing the Will.

During the pandemic,  Wills have been properly executed in accordance with the existing law if :

  • witnessed through a window or open door of a house or a vehicle
  • witnessed from a corridor or adjacent room into a room with the door open
  • witnessed outdoors from a short distance, for example in a garden

Video-witnessing

Under the new legislation, witnessing pre-recorded videos will not be permissible. If possible, the entire signing and witnessing process should be recorded and retained so that it can be used to assist a Court in the event of a challenge to the Will.

Examples of how the video-witnessing process might be appropriately used can be found here.

The testator should hold the front page of the Will document 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 testator should ensure that the witnesses can see them actually writing their signature on the Will.

If the witnesses don’t know the testator they should ask for confirmation of the person’s identity – such as a passport or driving licence.

The Will should then be taken to the two witnesses for them to sign, ideally within 24 hours, following the same procedure used by the testator when signing. Usually, this will involve the testator seeing both the witnesses sign and acknowledging that they have seen them sign the document.

Only once the document has been signed by the testator and both witnesses does it become fully validated. This means there is a risk that if the testator dies before the full process has taken place the partly completed Will will not be legally effective.

Whilst it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.

In circumstances where video-witnessing is undertaken, consideration may be given to amending the usual attestation clause in a Will which deals with the witnessing of the testator’s signature. It may be advisable to mention in the clause that virtual witnessing has occurred, along with details of whether a recording is available.

If you have any questions about this process, please do get in touch.