Video Wills – the new legal way to witness a Will
Did you read our blog from a few months back where we looked at the issue of witnessing wills during lockdown? Quite a dilemma when social distancing was at its strictest.
Well - now it's all change. Back in the spring, the law still wouldn’t accept the idea that Zoom, Skype, Facetime could be used. Hardly a surprise when you consider that legislation on witnessing Wills was introduced in 1837 when there was relatively little demand for video-link! However, on 25 July 2020, the government changed their position and announced temporary legislation to allow the witnessing of Wills remotely.
Physical presence of witnesses no longer required
Formerly, the law had stated that no Will was valid unless the following requirements were met.
- The Will was in writing
- The Will was signed by the Will maker in the physical presence of two witnesses, each of whom should be independent and aged 18 and over
- The Will was signed by the two witnesses, in the presence of the Will maker.
The new legislation doesn’t alter these requirements. However, it has re-purposed the meaning of ‘presence’. It no longer has to be a physical presence. Now, when the signing of the Will is witnessed ‘in the presence of’ two witnesses, this includes the option of it being by video-link.
This new legislation comes into law in September in England and Wales and will apply to Wills made since 31 January 2020 and for the next two years until 31 January 2022. The witnessing must be recorded. This recording has to be retained in case a court needs it as evidence in the event of the Will being challenged.
When witnessing the signatures, the person making the Will and their two witnesses must each have a clear line of sight of the writing of the signature. Pre-recorded videos don’t count. Due to risks of undue influence and fraud, electronic signatures are not permitted.
Steps to witnessing a Will via video link
The new guidance sets out the process of signing and witnessing the Will by video-link. –
1. The Will maker signs the Will, ensuring that the witnesses can see them signing by video-link.
2. The Will-maker then must post the Will to their witnesses for their signature - ideally, the Will should be sent to the witnesses within 24 hours.
3. The two witnesses must then each sign the Will during a video conference with the Will maker and the other witness present.
This new legislation will be a source of relief to many, especially to those for whom writing or changing their Will is a matter of urgency. There are, however, potential problems.
- The Will could be lost in the post;
- The Will maker could die during the process of the two witnesses signing the said Will
- There may be issues around the person’s mental capacity to make a Will, with the ensuing risk of abuse if they are vulnerable, including undue influence and fraudulent alterations.
- The video recording may be of insufficiently quality to be used by a court. This would cause greater uncertainty about whether the Will was signed and witnessed properly.
Remember - the witnessing of Wills by video-link should be used as a last resort where other solutions aren’t available.
The Will-making experts
More than ever, it’s vital to ensure that your Will is prepared with the help of a qualified person. We’re both experienced and qualified and will help with every aspect of making your Will.
To find out how we can help -
contact Tim Mullock on 01234 713021.
Or email Tim.Mullock@AdeptAssetSolutions.co.uk