Co-authored with Ally Tow
On 25 July 2020, it hit the headlines that video-witnessed Wills are to be legalised. The Government has introduced secondary legislation, amending the Wills Act 1837 so that, while Wills must continue to be signed ‘in the presence’ of two witnesses, their presence can be either physical or virtual.
The temporary measure comes as a response to the increased demand to make a will during the Coronavirus pandemic and the practical difficulties that are being experienced by those shielding or social distancing. Although the draft legislation is not yet available, the government has published official guidance for signing and witnessing a will by video-link.
When will it come into force?
The legislation, introduced in September 2020, will be back-dated in order to apply to Wills made from 31 January 2020, the date of the first registered COVID-19 case in England and Wales. The legislation will apply except where:
- a grant of probate has already been issued in respect of the deceased person; or
- the application for the grant is already in the process of being administered.
Is it a permanent change to the law?
The new law will remain in force until 31 January 2022. However, like its other COVID-19 measures, the Government has expressed that this will be shortened or extended if necessary.
Should it be considered ‘the new normal’?
The Government has emphasised that wills should be made in the conventional way (i.e. physical witnessing) where it is possible and safe to do so, meaning that video-witnessing should only be considered a last resort.
What are the current requirements for executing a valid Will?
Section 9 of the Wills Act 1837 governs the signing and witnessing of a will. For a will to be valid it must be:
- in writing;
- signed by the testator (or by another person in the testator’s presence and at their direction);
- signed by the testator in the presence of two or more witnesses present at the same time; and
- signed by the witnesses in the presence of the testator.
During the Coronavirus pandemic, distanced witnessing has been upheld by the Courts, meaning that wills can be validly executed as long as the witnesses have a direct line of sight. For instance, by:
- witnessing from another room or corridor with the door open;
- witnessing outside (either in the street, garden, or over a fence); or
- witnessing through a window or door (of a house or car).
What changes will be made to the law?
All the requirements stated above will remain the same, save for the temporary amendment that witnesses to the will do not need to be physically present.
Importantly, the testator and witnesses will still be required to physically sign the same original copy of the will in each other’s (virtual) presence; electronic signatures will not be permitted.
What practical points should I consider?
The following should be kept in mind:
- The quality of the sound and video must be sufficient for all parties (the testator and both witnesses) to see and hear what is happening. The witnesses should acknowledge that they can see, hear, and understand their role in witnessing the signature.
- The video-link must be conducted in real-time. The witness cannot, for instance, watch a pre-recorded video of the testator signing the will.
- Before applying their signature, the testator should show the front page of the will and the page they will be signing to the witnesses.
- The witnesses must be able to see the testator signing the will. Therefore, a video-link where just the head and shoulders of the testator are visible will not be sufficient.
- If the witnesses do not know the testator, their identity should be confirmed by showing a passport or driving licence.
- The meeting should be recorded and stored for safekeeping as evidence of due execution.
The witnesses must also sign the same original document in the (physical or virtual) presence of the testator. If this is to be completed virtually, the same procedure applies (as outlined above) and this should ideally be done within 24 hours of the testator applying their signature.
Although it is not a legal requirement for the two witnesses to sign in the presence of each other, the Government suggests this should be done as good practice.
The attestation clause should also provide for the alternative circumstances. The Government suggests that it should state that virtual witnessing has occurred and whether a recording is available. Professional bodies are expected to issue further guidance on this process.
For more detail, visit the Government website for their full guidance.
What are the potential problems of video-witnessing a Will?
Whilst many practitioners welcome the new legislation as being long overdue, many are equally concerned that the new measures will be open to abuse, especially for the elderly, vulnerable and those less technologically minded. This is likely in turn to see a rise in the number of probate claims. The number of claims involving contested wills at the High Court rose by 47% from 2018 to 2019 and there is concern among the profession that video-witnessing of wills will result in yet further increases.
One of the potential issues with video-witnessing a will relates to the requirement that the testator and witnesses need to sign the same original document. This means that arrangements need to be made for the document to be passed from the testator to the witnesses, which remains a practical difficulty for those shielding or self-isolating. There is also a greater risk of the signing process being incorrectly carried out. Bearing in mind that it is unlikely any such issue would be discovered until after the testator’s death when the executors were seeking to pronounce the will, there is a real risk that the will could be found to be invalid resulting in the testator dying intestate and their estate possibly not therefore be distributed in accordance with their wishes.
Further, it creates a delay between the testator and witnesses signing the document, especially where it is not possible to pass the document within 24 hours (e.g. if it needs to be posted which is likely to be a requirement if video-witnessing is being employed). Indeed, the original will may even be lost in the post and the entire process would have to be undertaken afresh. A will is only valid once the document has been signed by both the testator and witnesses and so there is a real risk that the testator (or either of the witnesses) could die before the full process has taken place. The consequence of this would be that the will would not be valid and, on death, the estate may not pass in the way the testator intended. Therefore, if there is any risk of death being imminent, witnessing a will by video-link should be avoided.
The retrospective effect of the legalisation also raises concern. Despite the positive intentions behind backdating the new law, any wills made by this method before the Government’s guidance was issued is unlikely to have complied with their requirements and may well be invalid, notwithstanding the fact that there were executed during the time period provided for by the new legislation.
There also remains a real threat of undue influence being applied to the testator. It will be harder for witnesses to detect any suggestion of undue influence or indeed, fraud or lack of capacity on the part of the testator over a video recording. For example, in the case of undue influence there could be a person standing off-camera influencing the testator during the signing of the will. Further, the Government have not permitted electronic signatures as it recognised that the risks of undue influence, fraud and mistake outweigh the benefits at this stage.
Lastly, the very nature of the change to the law being a temporary measure causes a sense of uncertainty. Whilst the proposal is aimed at making the process of executing a will easier during the coronavirus pandemic, particularly for those who are self-isolating or shielding, the guidance could actually be said to make the process more complicated and result in far greater potential risks. It is vital therefore that the method is only used where it strictly necessary which, in itself, it very unclear.
In light of the above, it is difficult to think of an instance where video-witnessing will be easier and more suitable than witnessing of a will in the conventional way (i.e. physical presence) with appropriate social-distancing measures in place. Especially where lockdown requirements are easing in much of the country, it raises the question of whether the temporary measure is really necessary and whether the potential intended benefits really do outweigh the potential (and very probable) risks of witnessing a will in this manner.
Given these potential pitfalls, the advice to testators remains to use the “traditional” method wherever possible.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.