The twin issues of mortality and social distancing arising from Covid-19 has led to the government permitting the witnessing of Wills remotely. When may this be done, and how?
Remote witnessing is last resort
The law (Wills Act 1837) currently requires that the person making the Will has their signature witnessed by two independent adults. All three must be present in person at the same time. See How to Sign Your Will for an overview of this procedure. A clear (physical) line of sight is required.
It is planned to temporarily permit remote witnessing via video for those who are unable to secure two witnesses in person. Thus, it applies to situations where the current procedure is not possible. These changes will be made via new legislation in September, which will amend the law to include video witnessing. See the government press release Video Witnessed Wills of 25 July 2020. The new law will be backdated to 31 January 2020 and will continue in force until 31 January 2022 initially.
Issues with remote witnessing
There are potential issues which could arise from this new form of witnessing. Examples include aggrieved beneficiaries who could challenge the Will on grounds of undue influence or capacity. Additionally, remote witnessing is a relatively complex, drawn-out process (see later).
That said, remote witnessing is nevertheless a welcome option for many of the 2 million or so ‘shielded’ persons who have no other means of making or changing their Wills.
How to witness a Will remotely
The complete Will signing process should be video recorded with clear sound, and the recording retained. Government guidance indicates five stages to remote witnessing:
- Witnessing the Will: The person making the Will and their two witnesses must each have line of sight of the writing of the signature in real time.
- Confirmation by the witnesses that they have seen the Will maker signing the Will. They must be present at the same time by way of two-way or three-way video link.
- The Will document then needs to be taken to the two Witnesses, ideally within 24 hours.
- The two witnesses need to sign the Will document – this will normally involve the person who has made the Will seeing both the witnesses sign and acknowledge having seen them sign.
- If the two witnesses are not physically present with each other when they sign, then step 4 will need to take place twice.
Emma Parsons (pictured) – Head of Personal Wealth – emphasises that a Will is fully validated only when the Will maker 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.
Published 5 August 2020