Published on: 25th July 2020

Video-witnessed wills to be made legal during coronavirus pandemic

Currently, the law states that a Will must be made “in the presence of” at least two witnesses. However while isolating or shielding some people have understandably turned to video link software as a solution – for example via platforms such as Zoom or FaceTime.

On 25 July 2020 Ministers acted to reassure the public that Wills witnessed using video link software will be deemed legal, as long as the quality of the sound and video is sufficient to see and hear what is happening at the time.

These changes will be made via new legislation in September, which amends the law to include video-witnessing for Wills.

Crucially, the move maintains the vital safeguard of requiring two witnesses – protecting people against undue influence and fraud.

Justice Secretary & Lord Chancellor, Rt Hon Robert Buckland QC MP, said:

“We are pleased that more people are taking the incredibly important step to plan for the future by making a Will. We know that the pandemic has made this process more difficult, which is why we are changing the law to ensure that Wills witnessed via video technology are legally recognised. Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable.”

The measures will be backdated to 31 January 2020 – the date of the first confirmed coronavirus case in the UK – meaning any Will witnessed by video technology from that date onwards will be legally accepted. The change will remain in place until 31 January 2022, or as long as deemed necessary, after which Wills must return to being made with witnesses who are physically present.

The use of video technology to witness a Will should remain a last resort, and people must continue to arrange physical witnessing of Wills where it is safe to do so. Wills witnessed through windows are already considered legitimate in case law as long as the witnesses have clear sight of the person signing the Will. Whilst this change will help those who have been “shielding” there are practical difficulties that need to be addressed. Whilst witnesses may see a Will being signed over a video link how will they know that the document sent to them by the testator (the person who signed the Will) for them to sign is indeed the document that they saw the testator signing?

The Government advice is “The use of video technology should remain a last resort, and people must continue to arrange physical witnessing of Wills where it is safe to do so.”

Signing and witnessing by video-link is not straight forward and should follow a process such as this:

Stage 1:

• The person making the Will ensures that their two witnesses can see them, each other and their actions.
• The Will maker or the witnesses should ask for the making of the Will to be recorded
• The Will maker should hold the front page of the Will document up to the camera to show the witnesses, and then turn to the page they will be signing and hold this up as well.
• By law, the witnesses must see the Will maker (or someone signing at their direction, on their behalf) signing the Will. Before signing, the Will maker should ensure that the witnesses can see them actually writing their signature on the Will, not just their head and shoulders.
• If the witnesses do not know the person making the Will they should ask for confirmation of the person’s identity - such as a passport or driving licence.

Stage 2:

• The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.

Stage 3:

• The Will document should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document.
• A longer period of time between the Will maker and witnesses signing the Will may be unavoidable (for example if the document has to be posted) but it should be borne in mind that the longer this process takes the greater the potential for problems to arise.
• A Will is fully validated only when the testator (or someone at their direction) and both witnesses have signed it and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the Will maker dies before the full process has taken place the partly completed Will is not legally effective.

Stage 4:

• The next stage is for the two witnesses to sign the Will document – this will normally involve the person who has made the Will seeing both the witnesses sign and acknowledge they have seen them sign.
• Both parties (the witness and the Will maker) must be able to see and understand what is happening.
• The witnesses should hold up the Will to the Will maker to show them that they are signing it and should then sign it (again the Will maker should see them writing their names, not just see their heads and shoulders).
• This session should be recorded if possible.

Stage 5:

• If the two witnesses are not physically present with each other when they sign then step 4 will need to take place twice, in both cases ensuring that the Will maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.

Consideration may be given to the drafting or amending of the attestation clause in a Will where video-witnessing is used. The attestation clause is the part of the Will that deals with the witnessing of the Will makers signature. For video-witnessed Wills it may be advisable to mention that virtual witnessing has occurred, for example using a clause such as : “I, first name middle name(s) last name, wish to make a Will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely.” along with details of whether a recording is available.

Casey & Associates will continue to recommend that our clients have their Wills witnessed by two witnesses who are physically present with the testator (but six feet apart).

If you need any advice on the above please do not hesitate to contact us using the contact page on our website which is here but if you do prefer to telephone then the number is 01732 868190.

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Casey & Associates has adapted its operations in the light of the current COVID – 19 situation.

We are currently offering telephone and video appointments. We are offering a limited number of “face to face” appointments in certain circumstances.

All our administration systems are fully operational with some colleagues working from home.

If you need to contact us please consider using the get in touch page which is here but if you do prefer to telephone then the number is 01732 868190.

We are currently dealing with a much higher number of telephone calls from clients than normal. When all colleagues are engaged on client matters our voicemail service automatically switches on. Please leave a voicemail and we will return your telephone call as soon as reasonably possible.

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