Witnessing of Wills in the new age of social distancing - video-witnessing to become legalised in England and Wales

As all solicitors in England and Wales will be aware, arranging the witnessing of Wills during the Covid-19 pandemic has become something of a logistical nightmare. It therefore comes as welcome news that the Government intend to pass legislation in September 2020 allowing for the remote electronic witnessing of Wills, albeit only a temporary change.

So what were the requirements for witnessing Wills?

The Wills Act 1837 sets out the following requirements to make a legally valid Will:

1. The Will must be in writing;
2. The Will must be signed by the individual making it in the presence of two independent witnesses; and
3. The witnesses must also sign the Will in the presence of the individual making it.

Organising a safe meeting of three people during lock-down, with all parties able to see each other clearly when signing as well as all touching the same document in order to sign it, whilst maintaining a safe distance has proved to be far from easy. A number of innovative methods were being adopted to cope with the continued need for 'physical presence' including meetings in gardens, through windows and the use of gloves in passing the document amongst the parties.

And what are the new requirements?

In order to address the difficulties currently being experienced in executing Wills during the pandemic, the Government will make it legal to witness Wills by way of a 'virtual presence' as an alternative option to the usual 'physical presence'.

The new law will be enacted in September 2020 and will retrospectively apply to Wills already executed from 31 January 2020 (excluding situations where a Grant of Probate has already been applied for) up to 31 January 2022. From 1 February 2022, the previous requirements of 'physical presence' will return as the only option for the presence requirement.

It is worth noting however, that this term could be reduced or extended if considered necessary, and therefore it is best to double check for any updates before relying on the new law.

So how will the new virtual witnessing work in practice?

As with 'physical presence', a witness taking advantage of the new 'virtual presence' option to witnessing a Will must ensure that they have a 'clear line of sight' of the testator signing the Will in actual time. This means the camera must show all of the testator as they sign the Will, including their signing hand and the Will and must not be a pre-recorded video.

Some additional wording will also need to be added to the attestation clause confirming the decision to opt for 'virtual presence' of witnesses rather than 'physical presence'.

The quality of the connection for the video-conference must also be sufficient to allow everyone to confirm that they can hear, see and comprehend each other and their role of witnessing the testators' signature.

The Will also needs to be signed by the witnesses to confirm they witnessed the testators' signature. This means the Will must be sent to each of the witnesses following the virtual witnessing of the testators' signature for each witness to also add their 'wet' signature as soon as possible.

Points to consider going forward

Whilst the introduction of virtual witnessing of Wills is certainly a welcome change, it should be carefully considered before being utilised.

From the perspective of contested Wills, it may be that the Government's attempt to make will executions easier in current circumstances, will lead to a rise in contested estates. This is because some believe video-conferencing could leave many testators vulnerable to undue influence for example, from individuals physically present at the will signing but not visible via the video link with the witnesses. In light of this, it may still be best, where possible, to continue with 'physical presence' witnessing and to only consider 'virtual presence' witnessing where absolutely necessary.

Contact us

If you would like our assistance to review or make a Will for you or your loved one, please contact a member of our Private Client Team who will be delighted to help.