Government proposes to make the video-witnessing of Wills legal during Coronavirus pandemic

Government proposes to make the video-witnessing of Wills legal during Coronavirus pandemic

The Government has announced its plan to introduce new legislation in September 2020 to allow Wills to be witnessed virtually in England and Wales.  It is proposed that this temporary legislation will apply retrospectively to Wills that have been signed, dated and video-witnessed since 31 January 2020, being the date of the first Covid-19 case in England and Wales. 

The coronavirus pandemic has seen a surge in the number of people making Wills.  However, as expected, those shielding or self-isolating have faced difficulties when it comes to complying with the legal formalities of executing a Will.

To this end, the Government proposes to amend the Wills Act 1837 to state that the ‘presence’ of those making and witnessing Wills includes, as an alternative to a physical presence, a virtual presence, being via video-link.  The quality of the sound and video must be sufficient so that all persons involved can see and hear what is happening.  

The Government has published guidance detailing how Wills should be video-witnessed.  The process is set out below: 

“Stage 1:

  • The person making the will ensures that their two witnesses can see them, each other and their actions.
  • The will maker or the witnesses should ask for the making of the will to be recorded.
  • The will maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well.
  • By law, the witnesses must see the will-maker (or someone signing at their direction, on their behalf) signing the will. Before signing, the will-maker should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders.
  • If the witnesses do not know the person making the will they should ask for confirmation of the person’s identity – such as a passport or driving licence.

Stage 2:

  • The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.

Stage 3:

  • The will document should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document.
  • A longer period of time between the will-maker and witnesses signing the will may be unavoidable (for example if the document has to be posted) but it should be borne in mind that the longer this process takes the greater the potential for problems to arise.
  • A will is fully validated only when testators (or someone at their direction) and both witnesses have signed it and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the will-maker dies before the full process has taken place the partly completed will is not legally effective.

Stage 4:

  • The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign.
  • Both parties (the witness and the will maker) must be able to see and understand what is happening.
  • The witnesses should hold up the will to the will maker to show them that they are signing it and should then sign it (again the will maker should see them writing their names, not just see their heads and shoulders).
  • Alternatively, the witness should hold up the signed will so that the will maker can clearly see the signature and confirm to the will maker that it is their signature. They may wish to reiterate their intention, for example saying: “this is my signature, intended to give effect to my intention to make this will”.
  • This session should be recorded if possible.

Stage 5:

  • If the two witnesses are not physically present with each other when they sign then step 4 will need to take place twice, in both cases ensuring that the will maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.”

As published on GOV.UK, dated 25 July 2020.

Under the current law, the witnessing of Wills always needs to be done in person and in order for a Will to be valid, the person making the Will (the “testator”) must:

  • be 18 years old or over;
  • make the Will in writing;
  • make the Will voluntarily and without undue influence;
  • have ‘testamentary capacity’ – meaning that they have the mental capacity to know fully what they are doing and are able to understand how their intentions, as set out in their Will, will operate on their death; and
  • intend, by their signature, to give effect to the Will.

In addition, there are certain formalities that must be complied with when executing a Will.  

  1. The testator must sign the Will, or another person must sign it in their presence and at their direction.  
  2. The testator’s signature must be either made or acknowledged in the presence of at least two witnesses, who are present at the same time.  The witnesses must have a ‘clear line of sight’ of the testator signing the Will and they must understand that they are witnessing and acknowledging the signing of the Will.
  3. Each witness must sign the will, or acknowledge their signature, in the presence of the testator (but not necessarily in the presence of any other witness).  The testator must also have a clear line of sight of the witnesses signing the Will.

This means that, provided the testator and the witnesses each have a clear line of sight, a Will could currently be properly executed by: witnessing it through a window or open door; or witnessing it outdoors.  In both of these scenarios clients should ensure that they follow the Government’s guidance on social distancing.

Despite the Government’s proposal, it is best practice for all clients, where possible, to execute their Wills in the physical presence of witnesses.  Particularly as the draft legislation has not yet been published and there is no guarantee that the temporary legislation will come into force in the same terms outlined in the Government’s guidance, published on 25 July 2020.

It is also widely acknowledged that there will be some risks associated with video-witnessing Wills.  Testators could be at risk of being unduly influenced by persons in the same room, but not seen on camera.  In addition, it is possible that the testator could die before the witnesses have signed the Will.  

Due to the risks of undue influence or fraud against the testator, the Government does not propose to allow electronic signatures as part of this temporary legislation.

It is proposed that the temporary legislation will apply until 31 January 2022, however this period may be shortened or extended by the Government.

Please note that this temporary legislation will not apply to cases where a Grant of Probate has been issued or where the application has been submitted and is in the process of being administered.

You can read the full text of the Government’s guidance on making wills using video-conferencing, published on 25 July 2020, at: https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing.

Written by Aoife Devereaux, Trainee Solicitor

Please contact Prince Evans’ Wills, Trusts and Probate Department for a friendly, no obligation, chat on 0208 567 3477 or over email at ben.davies@prince-evans.co.uk