Wills – Remote Witnessing New Rules
15 October, 2020
New rules have been introduced to allow Wills to be witnessed virtually by video technology.
These rules have been introduced as a temporary measure in response to the difficulties caused by lockdown restrictions and the COVID-19 pandemic. The new rules cover Wills made between 31 January 2020 and 31 January 2022.
The main change to existing strict rules surrounds the definition of ‘presence’. The legislation introduces a new subsection 9(2) to the existing Wills Act 1837 to expressly permit remote witnessing of Wills using video-conferencing technology by stating that ‘presence’ includes presence by means of video conference or other visual transmission. If an individual executes their Will under the new rules, he must sign in the (virtual) presence of the two witnesses and the two witnesses must also sign in the (virtual) presence of the testator and each other. All parties must have a clear line of sight and be able to see each other sign the Will.
It is important to note that all three persons must physically sign the Will and the new rules do not permit digital or electronic signatures, nor can the Will be signed in counterpart – all parties must sign one document.
Difficulties could arise as the original Will must be passed to each person for signature, by hand or by post and if the two witnesses are not in the same location there would need to be two extra/additional video calls. If the Testator dies between the calls/signatures then the Will is not valid.
Another problem relates to any future challenge to the Will, for example on the grounds of testamentary capacity. Often witnesses to the Will are called to give evidence of a testator’s behaviour and state of mind at the time of signing the Will. If a witness is not physically present this will limit their ability to provide credible evidence regarding such factors. It seems likely that any Will executed under the new rules will face additional scrutiny to ensure validity, Testators are therefore advised to make and keep a recording of the video signings and execution process.
This is a new and untested process and we would advise that video witnessing should only be used as a last resort and the guidelines provided by the Ministry of Justice followed absolutely. See the gov.uk website for further information.
At Storrar Cowdry our office remains open for those clients who wish to meet face to face and to sign their Wills in the presence of a solicitor (subject to local lockdown restrictions in force). We have social distancing and PPE procedures in place. We will help you sign your Will at home if that is your best option. We are also meeting with many of our clients via technology platforms such as zoom.
For further information about Wills please contact Gill Knowles on 01244 400567 or email: gillian.knowles@storrarcowdry.co.uk
