Wills can now be legally witnessed virtually via video technology
Following our article detailing the upcoming change to the requirements for Will witnessing, the Statutory Instrument was laid before Parliament on 7 September 2020 and comes into effect on 28 September 2020. This legislation is effective retrospectively from 31 January 2020 and stays in force (as it stands) until 31 January 2022.
This Statutory Instrument provides that Wills can now be witnessed virtually via video technology.
It must be made clear that the virtual witnessing requirements follow the same requirements as those contained in s9 of the Wills Act 1837, albeit undertaken virtually. This means that the testator must sign in the (virtual) presence of the witnesses, and the witnesses must also sign in the (virtual presence) of the testator.
The legislation does not provide for a Will to be signed in counterpart, nor can it be signed electronically, therefore, the same copy of the Will must be signed by the testator and the witnesses. As a result, the Will must be transported, whether it be by hand or post, to each witness, and a further video call (or two calls if the two witnesses are not in the same location) will then be required, with both witnesses and the testator present on all calls. This could cause significant problems if one of the three persons cannot join the video call (such as if one fell unwell). In the event that the testator were to die before the Will has been fully signed up, then the Will would not be valid.
We would advise caution in moving forward as there are risks in having a Will witnessed virtually. Risks that are immediately apparent include the prospect of a video call freezing, or the video dropping (which is not an irregular occurrence!). This could then result in a Will not being valid. In any event, government guidance as to the process of witnessing a Will virtually should be followed to reduce the risk of the validity of the Will being challenged at a later date. Indeed, there does seem, at this stage, to be a higher likelihood of a challenge to the validity of a Will witnessed virtually rather than in person.
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.