InsightsInsight - Wills and Probate - POSTED: November 16 2020
Witnessing Wills via video… Mission Impossible?
We look at how Wills can be witnessed virtually, and the potential difficulties.
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Many are celebrating the temporary legislation that has now come into force for Will signings.
But it’s hard to rejoice after reading a briefing note from STEP (the Society of Trust and Estate Practitioners) which details best practice for witnessing Wills via video and also warns about the things that could go wrong.
For those who don’t know about our current legislation for signing Wills, Section 9 of the Wills Act 1837 confirms that for a Will to be valid it must be signed, or the signature acknowledged, by the testator in the presence of two witnesses (at the same time) who must then sign, or acknowledge their signatures, in the presence of the testator. Simple right?
Unfortunately not, and especially not this year with social distancing and rolling lockdowns. So, in order to make the Will signing process easier, temporary legislation has been introduced to allow virtual witnessing of Wills. This will have retrospective effect from 31 January 2020 for any Wills made using video link.
The guidance is that video witnessing should only be used if it is impossible to have the Wills witnessed in another way. However, I feel that to ensure Wills are validly executed via video seems pretty impossible as an alternative.
The process for witnessing wills via video
The main steps are as follows:
Stage 1 – testator signs
The testator and both witnesses must have a clear line of sight of each other. The testator should hold the Will in front of the camera to show the witnesses the front page and the signature page. The testator must be seen signing the Will or they must hold up the Will and acknowledge their signature on camera.
It is recommended that Will signings be recorded and for the testator to say: “I, Alexandra Gordon wish to make a Will of my own free will. I will now sign the Will before these witnesses, Jo and Jane Bloggs, who are remotely witnessing me sign it.”
Both witnesses should then confirm that they can see and understand that the testator is signing and acknowledging their Will.
Stage 2 – witnesses signing
The Will must then be delivered to each of the witnesses, in turn. The witness and testator must join another video call and again the front page and signature page of the Will must be shown to the camera before signing. The witness must then either be seen witnessing the Will or must acknowledge their signature in front of the testator. This should then be repeated with the second witness as soon as possible.
It is advised that each stage should be recorded in case the validity of the Will comes into question later on.
Difficulties of witnessing Wills virtually
There are several difficulties with the process, which is why we are advising clients not to have their Wills witnessed virtually unless there is no other option.
The potential issues are:
- If there are technical problems which cause a lag or freeze while the Will is being signed, the Will should also be acknowledged on screen (by holding the Will in view of the camera and acknowledging at the same time).
- Capacity is harder to assess over video so this could cause problems if the Will is ever contested. Similarly, the possibility of undue influence and fraud are more likely.
- It is always advisable that the testator is on their own at the time of signing the Will – this is hard to confirm virtually.
- Confidentiality is an issue as once delivered to the witness to sign, they can read the contents of the Will. In a face-to-face Will signing, the contents of the Will are kept private with the witness only seeing the signature page.
- Even with a video recording, the lawyer involved should be making a comprehensive attendance note to record the reasons for witnessing via video link, their assessment of the risks and how they have minimised these, and how the meeting complied with legislation. This could cause higher fees.
- It is advised that the Will should be delivered to the witnesses as soon as possible and also preferably in person – this could cause as much risk to the testator as signing their Will in the conventional way.
- If the Will is lost in transit, then the testator will need to start the process again.
- If one of the witnesses is unable to sign after the testator has, then the testator will need to start the process again in front of two witnesses.
- If the testator passes away before both witnesses have signed, then the Will won’t be valid.
- It is advised that as soon as is practicable, the Will should be signed in the conventional way.
During COVID-19 we have helped clients witness their Wills in gardens, through windows and in a COVID safe environment in our offices. Our rooms are large and well-ventilated, with plastic screens. We ensure everyone uses a separate pen, everyone coming into contact with clients wears a face mask and the room is sanitised regularly, especially between clients.
If you are worried about making a Will during this time, we have a team of experts on hand who will come up with a solution to ensure your Will is validly signed.
This content is correct at time of publication
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