WillsLegal Update: Witnessing Wills via Video Link to Become Valid

Since the outbreak of the COVID 19 pandemic and recommendations of social distancing, witnessing of wills has been difficult. Under the current law, the physical presence of two independent witnesses is required and the law does not allow for video witnessing via services such as Zoom or Facetime. We covered this in a previous article and offered some potential creative options.

The government on 25th July have announced that the law will soon be changed to allow video witnessing. The change will take place in September although an exact date is not currently known. Measures will be backdated to 31st January 2020 to ensure that any wills witnessed by video link during the pandemic will be treated as valid. This change is seen as a temporary measure and will remain in force until 31st January 2022, although this may be shortened or extended if deemed necessary.

Under these changes, a will witnessed via video link will be valid provided that a number of steps are taken, which includes that the will must be sent to the witnesses for them to sign via video link with the testator. We won’t cover the steps that must be taken in full in this article but the official government guidance on the changes can be found here. STEP also have some useful guidance that can be found here.

Advice

The government themselves, along with professional bodies such as STEP, urge that remotely witnessing the will should only be a last resort when physically signing the will is not possible. Witnessing a will physically will be a much more simple process and can still be completed whilst complying with social distancing where care is taken. The additional steps that need to be taken with video witnessing could lead to the will being invalid if not completed correctly. There may also be a heightened risk of the will being challenged due to fraud, undue influence, duress, capacity or identify theft in these circumstances.

Whilst the changes in the law will be backdated to 31st January 2020, there are still risks that a remotely witnessed will won’t be valid if the testator dies before the law is changed or alternatively if the change in law does not go ahead due to unforeseen circumstances. Until the law has been changed, WillPack strongly advises against witnessing the will remotely.

A special attestation clause should be included where a will is to be witnessed via video link and we should be informed in writing if the will is to be witnessed remotely so this can be included. In the lead up to the changes coming into force we will create amended attestation guidance that will be sent with final documents in these circumstances.

If you would like any further guidance, please email us on [email protected].

Notes

• Whilst remote witnessing is possible, electronic signatures of wills has not been made valid. Wills must still be physically signed by both the testator and the witnesses.
• If a will is being signed on behalf of the testator in their presence, it does not appear that the law will be changed so that the person signing could be in digitally in the testator’s presence and it appears that physical presence will still be required for this. The witnessing can however still be completed remotely.
• The same document must be signed by the testator and by the witnesses. It is not valid for two identical copies to be drawn up and for the testator to sign one copy and for the witnesses to sign another.