Through the Looking Glass: Witnessing a Will using Video Conferencing
The Government has introduced legislation that will change how Wills are witnessed. Currently, Wills are only legally valid if the Testator (the person making the Will) signs their Will in the ‘presence’ of two witnesses who then signs the Will in the ‘presence’ of the Testator. This usually means that a Testator and two witnesses must sign the Will while in the same room as each other.
The reason for this is that the Testator and witnesses must have a clear view of each other when they sign the Will. They must also sign the same document so the Testator and witnesses cannot sign different copies of the Will.
There are other requirements when witnessing Wills i.e. the witnesses must be over 18 and cannot be a beneficiary under the Will but these are outside the scope of this post.
The new legislation
The legislation allows Wills to be witnessed through video conferencing such as Skype or Zoom. It will apply to Wills executed from the 31st January 2020 until 31st January 2022 with the Government having the option to extend or shorten this time period. This legislation will only apply to England and Wales.
It is recommended that the signing is recorded so that it can be used in court. The signing must also take place in real time so there can be no pre-recording. The audio and visuals must also be clear. The Testator’s permission will be needed to record the signing.
The Government has given a step by step process on how to validity sign a Will using this method. The guidance states that the Testator must hold up the front page of the Will and the page they sign to the camera so that the witnesses can see the Will. When the Testator signs the Will, the camera must be moved so that the witnesses can see the Testator sign the page. The witnesses must confirm they can see and hear and be present at the same time to witness the signing of the Will. The Will must then be taken within 24 hours to the witnesses who sign the Will either with each other in the same room and the Testator using video conferencing technology or with both witnesses using video conferencing technology along with the Testator. The same process should ideally be used when the witnesses sign that the Testator used.
The attestation clause, the part of the Will signed by the Testator, should be changed to recognise that the Will was signed and witnessed remotely. The Government has also announced that electronic signatures will not be a valid method of signing a Will.
Counterpart Wills, where there are two copies of the Will and the Testator signs one copy with the witnesses signing another, are not allowed under the legislation.
How we have witnessed Wills during lockdown
Before these changes were announced and during lockdown, we were still able to witness Wills. Though in order to still maintain social distancing and the rules enacted during lockdown this required changes to the way we would normally witness a Will.
One of the most common methods that we employed was to stand outside the house of our clients and watch them sign their Will through an open door and they watch us sign their Wills through the same door. The other method was for us to post the Will to a client with signing instructions and then the client would find a witness and follow the signing instructions. The Will would then be posted back, and we would check to make sure all the requirements had been followed and that the Will was correctly signed.
These methods had been used to great effect by us and we were able to assist clients with their needs. We were able to function to nearly full capacity and act for our clients to the best of our abilities in these unusual times. As a Firm, it is important that we can adapt to any changes so that we can enact the wishes of our clients and we are able to think outside the box.
It will be interesting to see how these changes affect the witnessing of Wills going forward. While these changes are much needed with social distancing and lockdown measures in place there are some concerns that these changes could lead to more problems than it resolves. Most Firms have adapted to these new times and have found ways to uphold social distancing and the old law on witnessing. If the Testator and the witnesses are in different locations, it could make the signing of the Will in 24 hours very difficult and the longer the Will goes unwitnessed the more doubts on its validity will surface. It could create another avenue for people to make claims against estates. This is especially problematic if the Testator does not consent to the signing being recorded.
It can also be harder to check for undue influence as video conferencing does not show an entire room. There may be someone else in the room exerting undue influence on the Testator who does not wish to sign the Will but is being forced to do so.
There is also the issue that if the Testator dies before the final witness can sign, and they live further afield than the other witness, then the Will shall not be legally valid and so not take effect. This means the wishes of the Testator cannot be enforced and the intestacy rules or a previous Will shall apply.
While this is a step in the right direction there are other ways that could be better. For example, the requirement for two witnesses could be relaxed instead.
If there are also concerns about undue influence, then the Lasting Powers of Attorney requirements for certificate providers could be used where the witness must be a professional or someone who has known the Testator for two years at least. This could be a more straightforward and more secure way of witnessing Wills.
This post was written by Phillip Bazley, solicitor and Head of the Private Client department, and Tom Miller, Senior Paralegal in the Private Client department.
If you or someone you know needs a Will please contact us on 01603 767671 to get a quote. Or alternatively please email Phil at firstname.lastname@example.org.