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The Government has recently confirmed that temporary legislation covering the signing of wills is being put in place to allow individuals to witness a will remotely. This temporary legislation will also apply to codicils. The usual requirements for signing a wills state that in-order for a will to be valid, it must be witnessed in person, in the presence of two people. This law has been in force since 1837 and has not changed or been amended, despite the recent consultation by the Law Commission in 2017, which looked at the overhaul of wills to reflect updates in technology. Electronic signatures will not be permitted as was recommended in the 2017 consultation. This is in order to protect vulnerable individuals against potential duress, fraud or undue influence.
The purpose behind the temporary legislation is in response to COVID and the challenges faced to sign a will, particularly for those who want to create or amend wills and cannot get out due to shielding. It is important to note that the new alternative to signing wills remotely, does not relax the strict requirements of will signing. It is therefore important that anyone signing wills through video link, comply with the rules properly, to avoid the wills being void.
The temporary legislation being introduced will come into force in September 2020 and will remain in force until January 2022 and will only be applicable to the law of England and Wales. However, the legislation will date back to 31 January 2020, meaning that any wills signed by video link from this date, will still be valid. It is yet to be seen from Government Guidance that should the usual will signing requirements return to normal, whether individuals will need to re-sign their wills once the temporary legislation comes to an end. It is understood that after this date, wills must be signed in the usual way, signed by the will maker and two witnesses who are physically present.
All types of video link can be used including WhatsApp and Facetime. It is important that all individuals have good internet connection and they have a clear sight of the will maker and each witness. If there is a lag or lost connection, once connection is restored, each individual should show each other the signed signatures to acknowledge and affirm that the signature was completed. The video should be recorded and retained as this provides evidence that the will was signed and witnessed correctly. Keeping an accurate record of the signing is crucial as video link is open to being easily challenged. The Government has therefore suggested that the use of remote witnessing should be used only as a last resort.
There is argument to suggest that there is a greater risk of the wills being challenged as it could be said that the procedure was not followed correctly, and the process is open to abuse or undue influence. However, it is unlikely to pose any more risk than a homemade will or individuals arranging and overseeing their own will signing. We would always suggest that wills are prepared and witnessed by a law firm to ensure that the formalities are complied with however, we understand the difficulties some individuals face in doing so and appreciate that other means of signing a will may sometimes be necessary.
There is also a cautionary warning for practitioners and individuals who may have signed wills via video link ahead of the legislation being in force. There is no current case law on this point and we therefore cannot predict what implications could arise from witnessing wills by video link at such an early stage.
We welcome the Government’s decision to allow witnessing wills remotely and the steps taken to reassure the public, in a time of uncertainty, that alternative methods of witnessing wills can be used. We are aware many of our clients have had concerns during this time about their wills and are pleased that there is an alternative, safe method available for individuals to choose from.
If you would like to make or revise an existing will please contact Christa Foster to arrange an appointment on 01689 887884 or email christa.foster@cwj.co.uk
How live video witnessing works:
The witnesses in a video signing must have a clear line of sight of the person’s face and their hand as they sign their will; it must be done live and cannot be pre-recorded and sent to the witnesses.
Once the person making the will has signed, the original document must be taken or sent to each witness as soon as possible. When it arrives, the same process must be followed, with a three-way live video link, where each can see and hear the witness as they sign. As each person signs, the others should acknowledge verbally that they have seen the signing take place.
While there must be a live video link for each signature, it is recommended to record each stage of the signing and this be kept with records outlining why the video witnessing was undertaken.