Why a Cautious Approach to Virtual Will Witnessing is Recommended

The 183-year-old law on making Wills in England and Wales has been updated to address the practical difficulties created by the coronavirus restrictions. Under a temporary change to the legislation, video technology can now be used to witness the signing of Wills. Our Wills Solicitors discuss why this method should be approached with caution.

The rules dictating how Wills and codicils are made require two adult witnesses to be physically present while the document is being signed. However, social distancing, self-isolation and shielding as a result of COVID-19 have made it difficult for these legal requirements to be met. 

A Statutory Instrument updating the Wills Act 1837 came into force on 28 September 2020. It permits the witnessing of Wills to happen using video conferencing. The reforms apply retrospectively, meaning all Wills made from 31 January 2020 (when the first coronavirus case was confirmed in England and Wales) using video witnessing will be valid, as long as the video quality is sufficient.

Our Wills Solicitors welcome this amendment, which will remove a significant challenge some of our clients have been facing during the pandemic. However, we have some concerns about the potential for abuse of vulnerable Will makers and the possible rise in contentious probate cases that could follow. In this article, we look at the reforms in more detail and discuss why taking a cautious approach to video witnessing is advised.

For personalised legal advice on any aspect of making or updating your Will, please get in touch with our specialist Wills Lawyers.

What are the rules on witnessing Wills?

Up until recently, the law required two witnesses to be present when the testator (the person making the Will) is signing the document. This meant they had to be physically present. The testator must also be present when the witnesses are signing the Will. Each party must have a “clear line of sight” during this process, meaning they are required to be able to see the signature being written on the document.

How have the rules changed?

During the pandemic, the number of people making Wills increased. However, for those self-isolating or shielding, meeting the witnessing requirements has been difficult. In response, the law has been amended to accept virtual presence as an alternative to physical presence. The fundamental rules still apply to video-witnessed documents. The witnesses and testator must be present and have a clear line of sight when each person is signing the Will.

Requirements of virtual Will witnessing

The Government has produced guidance, including a five-stage process, on how to ensure a Will witnessed using video technology is valid. Here are some important points to be aware of:

• Pre-recordings are not acceptable; the witnesses must see the document being signed live.
• The witnesses must be able to identify the testator, see the document is a Will and see the testator writing their signature. Viewing the testator from the shoulders up is not enough.
• The witnesses must be present at the same time, either physically or virtually. This can be achieved by a two or three-way video link.
• The original copy of the Will must be taken or sent to the two witnesses for signing, preferably within 24 hours. More time is acceptable if, for example, the document is to be posted.
• The testator must be able to see the witnesses signing the Will.
• The witnesses do not have to see each other sign, but it would be good practice for this to happen.
• Ideally, each stage of the witnessing process should be recorded.
• It is recommended that a clause is included in the Will to notify that video-witnessing will be used and whether or not a recording will be available.

The change to the legislation is temporary, remaining in effect until 31 January 2022. However, the Government has said this timeframe might be extended or shortened if considered appropriate.

Why is a cautious approach to video witnessing recommended?

In its guidance, the Government advises that if people can make their Wills using the usual process, i.e. witnessing in person, this should happen. While we recognise the benefits that virtual witnessing offers – and also hope it opens the doors for further modernisation of our out-dated law on Wills – due to the practical concerns of using video technology and the associated potential for a rise in abuse and litigation, it is important to take a cautious approach.  

Practical concerns

The various stages involved in witnessing via video link and the delay while the document is transferred from the testator to the witnesses increase the risk of problems occurring. For example, documents could be lost or interfered with while in transit. There is also the possibility that the testator could die while the Will is conveyed to the witnesses. If that were to happen, the Will would not be valid, resulting in additional work and stress for the testator’s loved ones.

Potential for abuse and litigation

A Will is only valid if it is made without pressure from another person. Using video conferencing presents the problem that it might not always be possible to verify that there is no-one else is in the room exerting undue influence over the testator. This could open the doors to challenges by disappointed beneficiaries, leading to an increase in legal disputes.

The fact that the amendment applies to Wills witnessed virtually since 31 January 2020 could also create an increase in disputes over their validity. Challenges over whether the strict procedural rules were followed are highly likely.

How can we ensure making your Will is safe during coronavirus?

We will attempt to arrange for your Will to be physically witnessed where it is safe to do so, and will only use video technology if this is not possible.

We may be able to facilitate safe and valid witnessing in-person, for example in an outdoor location or through a window or an open door – all of which have been approved in the Government’s guidance. In every event, our team will make sure all necessary precautions are taken to protect you and your witnesses, including using masks and gloves and sanitising surfaces.

Making a Will is an important step in planning for your future, and we understand during these worrying times you may be keen to make or update your wishes as quickly as possible. It is vital to instruct a qualified and experienced solicitor who can help you to carry out this process correctly, as well as swiftly, to ensure your wishes are fulfilled.

Contact our Specialist Wills Lawyers in London, Surrey and Middlesex

If you would like to talk to us about any aspect of making or updating your Will, then please contact one of our Wills Solicitors via our online enquiry form or by phone on 020 8890 2836.