The Covid-19 pandemic has undoubtedly changed the way we live. The need to socially distance and an ever-changing number of restrictions has created new challenges for solicitors and their clients. One aspect affected is the signing of legal documents where the presence of a witness is required. As the country enters a second national lockdown, it is vital that people are not putting themselves at risk in order to correctly sign and witness a document.
The pandemic has brought an increase in the demand from people wishing to make a Will, and this has left Private Client solicitors wondering the best method to ensure the wills are validly executed. Where previously a solicitor may have attended the client in their home or at hospital, this is no longer possible.
Legally, section 9 of the Wills Act 1837 has required a testator to sign or acknowledge their signature “in the presence of two or more witnesses present at the same time”. Each witness is then required to attest and sign the Will or acknowledge their signature in the presence of the testator (though there is no requirement for the other witness to be present). So up to now video witnessing of wills has not been possible.
In response to the safety risks involved in in-person witnessing, the UK Government has temporarily amended the Wills Act 1837 so that the definition of “presence” includes a virtual presence (i.e. via video-link). This means people now have the option of signing their Will with their witnesses physically present or with the witnesses virtually present, e.g. via Zoom or Skype. For example, the Will maker could be in one house and the two witnesses in another and they would then complete the witnessing procedure over a two-way video conference. The parties even have the option to all be in different locations over a three-way video link.
This temporary amendment applies retroactively to Wills made from 31 January 2020 up until 31 January 2022. The government has the option to shorten or extend this time limit, keeping it in line with the coronavirus measures in place at the time. This does not however apply to Wills made since 31 January 2020 if Grant of Probate has already been issued or an application for Grant is being processed. The legislation also applies to codicils (i.e. small amendments or additions to the Will made with use by a second document).
However, the Government have made clear that this new method of video witnessing of wills should not replace the traditional method of witnessing a signature in person. Wherever possible, it is advised that Wills should still be witnessed in person. The law has provided that it is valid to witness a Will through a window or open door of a vehicle; from a corridor or adjacent room into another room with the door open; and from a short distance, e.g. in a garden so long as all parties have a clear line of sight of the person signing.
Video witnessing of wills does pose some risks, for instance there is the risk of a third party standing off camera coercing the will maker or witness into signing, or the increased possibility of someone challenging the Will on the basis of incorrect execution.
So, what are the best ways of video witnessing of wills while ensuring it has been properly executed? Solicitors, will makers and witnesses should ensure to take into account the following tips when signing and witnessing Wills remotely:
1 Recording: If possible, the video conference(s) should be recorded and the recording retained. This will serve as evidence of due execution should the Will be challenged. The video conference must be in real time, a pre-recorded signing cannot be witnessed.
2 Showing the room: To mitigate the risk of third-party interference, the person signing may show the room they are sat in over video before signing to provide evidence that there was no one off camera pressuring them to sign.
3 Showing the Will: The will maker should first hold up and show the front page of the Will and then show the witnesses the page they are to sign.
4 Suggested wording: Government guidance suggests the testator say the following before signing: “I [first name], [surname], wish to make a Will of my own free choice and sign it here before these witnesses, who are witnessing me doing this remotely”.
5 Line of sight: The person who makes the Will and their two witness must each have a “clear line of sight” of the person writing the signature. When signing, the witnesses and will maker should all be able to see each other actually signing the Will, not just their head and arms.
6 Signing procedure: Once signed by the testator, the Will should be delivered to the witnesses as soon as possible for them to sign (ideally within 24 hours), again over video conference with the will maker. If the witnesses are not together, this step will need to be repeated. Time is of the essence here: should the testator die before the witnesses sign the document; it will be invalid.
7 Electronic signatures: The Government has chosen not to allow electronic signatures to be used.
8 Counterpart documents: The Government has chosen not to allow counterpart documents to be used – this is when two copies of the Will are made and the will maker signs one copy, and the witnesses sign the other. The two documents are then combined to form the Will.
It is hoped that these temporary measures will provide much needed relief to those wishing to make a Will during these difficult times. If you would like to discuss drafting your Will or any other Private Client matters, our Private Client team at Hanne & Co are here to help and can be contacted on 020 7228 0017.