Video Witnessing of Wills to be Lawful..... TemporarilyPublished on: 27 July 2020
Since 1837 the law has said that, for it to be valid, a Will must be executed in the presence of two witnesses. The witnesses have always had to be physically with the testator at the time the Will is signed. Since the start of the COVID-19 pandemic concerns have been expressed by many about the difficulty of fulfilling those requirements in a time of lockdown.
Until this weekend, there has been no announcement about any actual change in the law in this area. However, on 25 July, the government confirmed that Wills that are executed in the presence of witnesses who are not physically present but are present virtually through a live video linked (using software such as Zoom or FaceTime) will be deemed lawful.
This is historic. However, there are some important conditions and caveats and points to note:
- Most importantly, the changes will be temporary and will remain in place until 31 January 2022 (or as long as deemed necessary). After that, things will return to how they have been before: two witnesses physically present at the time the Testator signs.
- The law has not yet changed. The change is expected to be made by an amendment to the 1837 Wills Act by way of a Statutory Instrument in September 2020.
- However, the intention is that these measures will be backdated to 31 January 2020 - the date of the first confirmed coronavirus case in the UK. This means that any Will correctly witnessed through video technology from that date onwards will be legally accepted (whilst this legislative change remains in place).
- The vital safeguard of requiring two witnesses remains in place.
- As has always been the case, the witnesses must be aged 18 or over, independent, cannot benefit under the terms of the Will (and nor can their spouse/registered civil partner) and should not be family members.
- Electronic signatures will not be permitted.
- Counterpart Will documentation will not be permitted.
- Any video link used must be a live link and should (preferably) be recorded.
- The government say that use of video technology for witnessing Wills should remain a last resort. Having read the government’s guidance, it seems there are some difficult and potentially time consuming (but also time constrained) hoops to jump through to get your Will executed in this manner. So I do not think any reasonable person would want to go down this route to execute their Will unless absolutely necessary.
People must continue to get their Wills witnessed the way in which we are all familiar - i.e. with the two independent witnesses being physically present - where it is safe to do so. We should remember that Wills witnessed through a window (where there is a clear line of sight) are already considered valid.
All in all, this seems to be a sensible offer by the government of a temporary work around to a problem that has bedevilled Will practitioners since the pandemic lockdown began.
There will be an outbreak (possibly viral but unlikely to be pandemic) of comment among Will practitioners in various online discussion forums following this announcement. On the whole, one would expect the response to be positive.
The line we take is that which the government recommends: that we will explore the use of online video witnessing as a last resort, where it is not possible either for us to supervise the Wills by being physically present, or where we are able to ensure our clients can arrange their own witnesses to witness the Wills by being physically present and socially distant.