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Covid-19 and Wills: Government confirms Wills can be witnessed by video link

In a move designed to assist people who are isolating or shielding due to Covid-19, the Government has announced plans to change the law to allow Wills to be witnessed virtually in England and Wales.  This is a significant development which allows two individuals to witness a testator signing a Will using video link software such as Zoom, Skype or FaceTime.  Under current plans, this change will apply retrospectively to Wills made from 31 January 2020 and will be in force until 31 January 2022 (although this can be extended or shortened by statute).  Testators wishing to have their Wills witnessed virtually should proceed with caution to mitigate the risk of validity challenges and allegations of undue influence, lack of knowledge and approval, fraud and lack of capacity.

Section 9 of the Wills Act 1837 requires a testator to sign a Will “in the presence of” at least two witnesses. Under the existing law, this requires witnesses to be physically present when the testator signs the Will.

This requirement has proved extremely difficult for those who have been shielding or isolating during the lockdown.  Some testators have been able to sign their Wills in the presence of two witnesses through an open window or open door of a house or vehicle where they have had “a clear line of sight” of the act of signature.  For others, witnessing at a distance has not been possible and has led some testators to take the risk of having their Wills witnessed by video link.

The government’s announcement that Wills can be witnessed virtually will no doubt be of great comfort to testators who have had their Wills witnessed by video link since the pandemic spread to the UK at the end of January 2020 and to vulnerable or isolating individuals who will struggle to make a Will in the physical presence of others whilst Covid-19 continues to pose a risk.

The law permitting Wills to be witnessed by video link will be made by implementing secondary legislation under the Electronic Communications Act 2000 and is expected to come into force in September 2020, with retrospective effect from 31 January 2020 for a period of two years.

Comment

The types of video link software and electronic device used should not matter as long as the quality of the sound and video is sufficient for the witnesses to see and hear the Will being signed. The witnesses must see the Will being signed in real time and not on a pre-recorded video which will not be permissible. The Will containing the testator’s signature must then be given to the witnesses for signature, ideally within 24 hours (although a longer time period will be necessary if the Will needs to be posted to the witnesses).

Here are some top tips for individuals who are considering making a Will in the virtual presence of witnesses:

  1. The government’s current guidance is that witnessing a Will using video technology should be a last resort and Wills should be witnessed in person if it is safe to do so.
  2. Bear in mind that a Will is not valid until both witnesses who witnessed the testator’s signature have signed the Will. The longer it takes for both witnesses to sign the Will, the greater the risk of problems arising. If the testator dies before both witnesses have signed the Will, the Will will not be legally effective.
  3. Wills witnessed by video link may be more vulnerable to validity challenges on the grounds of ineffective execution, lack of capacity, fraud or undue influence. Testators would be wise to ensure that the entire video-signing and witnessing process is recorded and that the recording is kept safe in case the Will is challenged at a later date. A detailed attendance note of the process should also be taken. Furthermore, testators may wish to re-sign their Wills and have them witnessed in the conventional way as soon as practicable in order to mitigate the risk of their Wills being challenged.

Testators should bear in mind that, even if your Wills are valid, your testamentary wishes could be subject to challenge by relatives claiming for financial provision from your estate under the Inheritance (Provision for Family and Dependants) Act 1975 or individuals claiming entitlement to inherit by way of proprietary estoppel.

We can advise claimants and executors on all kinds of challenges to Wills including validity challenges on the grounds of ineffective execution, lack of capacity, fraud or undue influence, Inheritance Act claims and proprietary estoppel claims.

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Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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