Associate Solcitior, Leah Duffield explains the process of witnessing wills by video conference during the pandemic.
It is a requirement of the Wills Act 1837 that for a will to be valid, it must be signed in the presence of two independent witnesses, who must also sign. This requirement has proved difficult to achieve for some clients, whether this is due to the requirement to self-isolate, the rules on social distancing or the ban on visitors in hospitals and care homes.
Here at Archers Law, we have worked hard throughout the pandemic to support clients to safely sign their wills. Now, in recognition of the increasing difficulty in arranging face to face appointments during the pandemic, the government have introduced new measures to temporarily allow for wills to be witnessed at a distance via the means of video conferencing.
The new rules will apply to wills made since 31 January 2020 and at present are intended to remain in place for two years, ending on 31 January 2022. However the government have made clear that they will shorten or extend this timescale as they see fit. It remains the case that wills should be witnessed in the conventional way wherever possible. However, we can have confidence that the witnessing of wills by video conference is an option available to us for those who are struggling to arrange independent witnesses who can physically be in their presence. The legislation also allows for remote witnessing of codicils (a legal document that formally modifies or amends a will).
All types of video conferencing will satisfy the requirements, whether that’s Zoom, Teams or video calling over a mobile phone, as long as the quality of sound and video is sufficient for everyone to be able to see and hear what is happening. The video call can be by two or three way call, there is no requirements for the witnesses to be together. The key requirement is that the person making the will and the witnesses are all in clear line of sight of each other at all times. The witnesses must be able to see the person making the will actually signing the will. It is not sufficient for the witnesses to simply be able to see the person’s head and shoulders. The video call must happen in real time, pre-recorded videos of signing will not be sufficient.
Once the person making the will has signed, the witnesses should be passed the will for them to also sign in the presence of the person making the will, again by video call. This should happen as soon as possible. For situations where the witnesses are in an adjacent room or rooms, the witnessing can happen straight away and ideally should happen within 24 hours. However, sometimes the witnesses will unavoidably be further away, requiring the will to be posted. In this case, the witnesses should sign as soon as possible. The longer time that elapses between the person making the will signing and the witnesses signing, the more the will is open to be challenged. Therefore, we would encourage clients to minimise as much as possible the time between parties witnessing. The will is only valid when the testator and both witnesses have all signed and witnessed.
The validity of a will has become an increasingly contentious issue, with dissatisfied beneficiaries seeking to challenge wills when they are not happy with their inheritance. The concern is that a video witnessed will would be closely scrutinised by those seeking to argue that a will is invalid. We therefore encourage caution with video witnessing, arranging physical witnessing where possible. If video witnessing is taking place, we are reminding clients to closely follow government guidance and to seek the appropriate legal advice. We are also recommending that clients consider re-signing the wills in the actual presence of witnesses once circumstances allow.
Got a question about your will? Contact a member of our Wills, Probate and Trusts team.