Solicitors in Westminster, London
Video-witnessing of wills
Video-witnessing of wills
New temporary legislation has been announced by the government, allowing wills in England and Wales to be witnessed using video technology during the coronavirus (Covid-19) pandemic.
For a will to be valid, the current law requires it to be signed "in the presence of" at least two independent adult witnesses. "Presence" used to mean only physical presence, but with social-distancing measures in place, and many people self-isolating, this requirement has presented difficulties.
The Government's response to overcome this obstacle has been to temporarily amend the current legislation so that witness' "presence" may be virtual as well as physical. This change in the law means that wills witnessed via video platforms, such as Zoom and FaceTime, will be legally accepted. The new measure took effect in September, but will apply retrospectively to any wills made in this way from 31 January 2020. It will remain in place until at least 31 January 2022.
The changing of the law should give peace of mind to those thinking about recording their final wishes during this challenging time, whilst also continuing to protect the elderly and most vulnerable. However, it is crucial that video-witnessing follows the rules that continue to be a legal requirement, including:
- Ensuring both witnesses can see the will being signed by the will-maker at the same time. This means positioning the camera so that the will, will-maker and witnesses are all in the same frame at the time of signing.
- Similarly, the witnesses must be observed by the will-maker when signing the will, but do not have to be observed by each other.
- Circulating the will to the witnesses as soon as possible so that it may be physically signed by them (the Government has decided not to allow electronic signatures or the signing of documents in counterpart as part of this temporary legislation).
Whilst we welcome the new legislation as a necessary response to the pandemic, we recommend using video-witnessing only as a last resort. People should continue to make wills in the physical presence of witnesses where it is safe to do so, remembering that this can include witnessing through a window or open door, or outdoors from a short distance.
Where this is not possible, the Government have recommended that the video-signing and witnessing process be recorded and retained, since this may assist a court in the event of a will being challenged. The Government further recommends that witnesses:
- Confirm they can see and hear (unless they have a hearing impediment) the will-maker and that the will-maker can see and hear them.
- Ask the will-maker to hold up the front page and the signature page of the will to the camera so that they can read the details
- Acknowledge and confirm that they understand their role in witnessing the signing of a legal document.
- Be present at the same time via a video conference and be able to clearly see the will-maker signing the will.
Whether isolating or shielding, elderly or vulnerable, the new legislation presents an opportunity for people to make and execute a valid will in a safe and easy way. The use of video-witnessing should, however, be approached with caution, and avoided all-together wherever possible.
If you have any questions arising from the issues discussed above, please contact Ben Nichols at Ben.Nichols@LBMW.com or by telephone on 0207 9607196
The contents of this article do not constitute legal advice and are provided for general information purposes only. The contents are copyright of Lee Bolton Monier-Williams LLP. All rights reserved.