Published on: 21st June 2021

Should you take the risk with video attestation of your Will?

The global Covid-19 pandemic has led to significant changes in how many previously accepted routines are done. Within Estate Planning one of the most significant legislation changes we have seen since the start of the pandemic has been in relation to the witnessing of Wills. This law was changed on 28 September 2020 and was backdated to 31 January 2020 and ruled that Wills signed and witnessed over video during the pandemic would be valid.

Why have these rules been put in place?

The Covid-19 pandemic has made it much more challenging for travel to happen and there have been long periods where lockdowns have been in place and it has been difficult to see someone face to face, especially as many who need a Will witnessed may be older, vulnerable and perhaps need to shield. Traditionally, you needed to be with your witnesses as the Will was being signed but as this has not always been possible during the pandemic and as the signing of many Wills has been essential during this period, the new rules were put in place.

Are Video Wills as valid?

At Casey & Associates, wherever possible, we like to visit our Clients when taking their instructions. Not only does this enable us to be directly on hand to answer any last minute questions or concerns but it is much easier  to gauge a situation compared to an appointment via a video call.

As well as it being more difficult for us to gauge an individual circumstance, anyone witnessing the Will may not get the full picture either. How do they know the person they are witnessing does not have someone influencing them off camera for example?

Despite this a Will witnessed over video is certainly valid but time will tell if it is more likely to be challenged further down the line during the Estate Administration process and we will not see a conclusive pattern on this for many years to come.

Are there any other potential drawbacks?

By having your Will witnessed by video there are other potential pitfalls you should be aware of:

• Internet connection – Since the first lockdown when the usage of video conferencing programmes such as Zoom and Microsoft Teams increased significantly, it has become apparent just how temperamental internet connections can be. As witnesses need to have a clear line of sight to the Will at all times, any break in connection could be problematic.
  
  
• Time between signing – As Wills need to be sent off to be signed by each witness there could well be time elapsing between the testator signing the Will and the witness receiving it. This could lead to the testator dying before the Will reaches and is signed by the witness.
  
  
• Recordings – The attestation of the Wills need to be recorded. This needs to be properly administered so there is an accurate record of the Will being signed and therefore relies on good camera work to ensure the signing of the Will is properly recorded.
  
  
• Post – Especially if the Will needs to be posted to both witnesses, there is potential for a Will to get lost in the post. If this happens the Wills need to be resigned which adds more time for something to happen.
  
  
• Computer literacy – For many using a piece of software like Zoom or Microsoft Teams is something they do on a daily basis, but for others (and especially the elderly) it may be quite a challenge. If this is the case and a Will needs to be signed urgently then a lack of computer literacy can cause problems.
  
  
• Fraud risk – As the Wills need to be delivered from one party to another, it may be possible for whoever delivers the Will to alter the document or perhaps replace certain pages.

What would we recommend?

There have clearly been circumstances over the last year where someone has needed a Will and it has been difficult for them to find two people to witness their Will. In a circumstance like this a video witnessed Will is certainly better than no Will or an out of date Will. We would, however, strongly recommend that this is only a last resort and would suggest wherever possible the signing of a Will is witnessed in the same way as it has traditionally with the testator and two witnesses all in the same room at the same time.

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Our Covid-19 policy is now that if you wish to give instructions or require general information about our Wills, Lasting Powers of Attorney or Trusts then we will carry out a telephone or Zoom appointment. However, if you wish to give instructions to one of our Consultants and you feel that you can only do this at a Face to Face meeting we are offering, at our Consultant’s discretion, a limited number of Face to Face appointments in most of the areas we normally cover (subject to Government advice). To see the areas we normally cover please click here. To arrange an appointment please telephone 01732 868190 or click here.

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