Making a Will during Covid -19: can a Will be witnessed remotely?

A change in legislation, in direct response to the Covid-19 pandemic, means that Wills can be witnessed remotely by video conference. Alan Gates, Chartered Legal Executive in Coodes Solicitors’ Wills, Probate and Trusts team, and Ben Sidgwick, Associate in the Personal Disputes team comment.

The legal profession is adapting to many new challenges during the Covid-19 pandemic, including taking different approaches to the drafting and execution of Wills whilst social distancing and for those who are shielding. Here at Coodes, we have been making great use of technology to communicate with clients safely during the pandemic.

However, there has been some confusion around the question of whether or not a Will can be witnessed through video conferencing, rather than in person.

New temporary legislation will now provide that clarity. The Ministry of Justice has announced that the law will be changed meaning that Wills witnessed via video conferencing will be valid. This legislation is set to officially come into force in September and will be in place for two years, or as long as is needed. It will be applied retrospectively to Wills signed and witnessed through video calls from 31 January 2020 onwards.

Witnessing a Will via video conferencing

The principles of witnessing a Will through a video call are broadly the same as for the conventional process. There must be two independent witnesses, who are not beneficiaries, and the Will must be signed in real time, which means it cannot be done through a recorded video message.

There are strict and detailed procedures to follow in order to ensure valid execution as well as to reduce the risk of undue influence and fraud, including that:

• The Will maker and witnesses must have a clear line of sight to one another throughout the process and should confirm they can see and hear each other before they start.
• The person making the Will must show the witnesses the front page of the Will and the page they are going to sign and the witnesses must see them sign
• To be legally binding, a Will requires a ‘wet signature’ as electronic signatures are not currently valid. This means that, after they have been signed on a video call, the Will must then be posted to the witnesses to be signed who must then arrange video calls with the Testator for them to see the witnesses sign. Unless the witnesses are together, the process will need to be repeated with each attesting witness.
• The process should also be recorded, if possible.

It is understood that the change will be passed by Statutory Instrument pursuant to Section 8 of the Electronic Communications Act 2000, and that this will take place in September 2020. More widely, the Law Commission is reviewing the entire Will making process, which could lead to further changes and modernisation in due course. We will keep clients updated on developments and will continue to follow the latest guidance and procedure.

Is it still necessary to witness a Will in person?

It is rare that someone would need to rely on video conferencing for witnessing a Will. It is relatively straightforward to maintain social distancing while a Will signing is being witnessed and we can guide our clients through this process. The new legislation is likely to be of most relevance to those who are shielding or self-isolating.

The Ministry of Justice has advised that video links must only be used as a last resort and we would strongly advise clients to adopt the conventional approach of Wills being witnessed in person unless it is strictly necessary to complete the process remotely. However, we are fully enabled in terms of our technology and expertise to assist those of our clients who may find themselves with no other option.

Is remote witnessing new?

According to the Wills Act 1837, a Will must be signed in the presence of two witnesses who then sign their names in the presence of the Testator. This new legislation will extend that definition of presence to include a live video link.

While the legislative change will be new, the concept of witnessing a Will at a distance is not. In recent months, we have arranged for Wills to be witnessed through car windows, for example, and outdoors at a distance, whilst maintaining a line of sight with the Testator. This is based on historic cases of Wills being witnessed at a distance including Casson v Dade (1781) which involved a woman witnessing a Will through a window while sitting in her carriage during which time she was considered to have been “present” for the purposes of witnessing the Will.

Furthermore, military personnel have long been able to produce what is known as a ‘privileged Will’, allowing them to record their final wishes while on active service. These are made through a more informal process and can even be made orally, rather than in writing. A privileged Will does not have to be witnessed at all.

What are the risks of having a Will witnessed remotely?

We would only recommend having a Will signing witnessed remotely if this was the only viable option. This process is not as secure as having witnesses physically present so we would advise exercising caution and having professional assistance throughout.

The additional risks to a Will being witnessed virtually include technical difficulties such as poor video quality, which could affect the process. There are also security risks, such as the possibility of another person being present but off screen who may be unduly influencing or coercing the Testator, and the added risk that the Testator dies or loses capacity whilst the Will is sent in the post between the Testator and the witnesses.

Here at Coodes, we will discuss the whole process with our clients to establish the recommended means of completing a Will. If that means having it witnessed remotely, this is something we can deal with and we can ensure that any risk is minimised.

For more information or advice in making a Will, please contact Alan Gates or another member of the Wills, Probate and Trusts team: 0800 328 3282 or alan.gates@coodes.co.uk. For advice on probate or inheritance disputes, please contact Ben Sidgwick or another member of the Personal Disputes team: 0800 328 3282 or ben.sidgwick@coodes.co.uk