COVID-19, with no doubt, led to some confusion on how Wills were to be signed and witnessed, whilst adhering to the social distancing measures. Now that we are back to normal, have we seen the end of video witnessing wills?
How is a Will validly executed?
Ordinarily, section 7 of the Wills Act 1837 provides that no Will shall be valid unless-
- It is in writing and signed by the testator or by some other person in his presence and at his direction; and
- It appears that the testator intended by his signature to give effect to the Will; and
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time who attest and sign the Will or acknowledge his signature. Such witnessing should be in the presence of the testator (but not necessarily in the presence of any other witness.
Having regard to the social distancing measures during covid, the government put forward a temporary amendment to the Wills Act 1837, in September 2020, which the paved way to allow individuals to have their Wills witnessed remotely via a video call.
This amendment was further extended in January 2022.
What did video and remote witnessing require?
The Wills would be witnessed in the same way as if the testator/testatrix and witnesses were physically present, however the only difference would be that this would be undertaken over a video call rather than sitting together in a room.
Nonetheless, the witnesses must be able to have sight of the individual in a large enough frame to see them drawing out their signature. A simple headshot wouldn’t be sufficient.
Would the attestation clause remain the same?
On this occasion, the answer would have been no. For remote witnessing, the attestation clause would have been amended to illustrate that the Will had been signed remotely. This did not, however, open doors to allow e-signatures.
Are there any risks with remote witnessing?
Absolutely! There are various risks that could arise, such as the risk of any undue influence and fraud which could have been mitigated if they were in person.
As e-signatures were not permissible, the Will would need to be sent to each witness to sign. However, depending on the circumstances, the testator/testatrix could suddenly pass away in the meantime, leaving their estate intestate. Further guidance had been published to state that all remote witnessing Wills must be completed within a 24-hour timeframe.
What is the current position on remote witnessing?
As of 31 January 2024, the government have confirmed that they are no longer extending this legislation which means that a Will will not be valid if they have been witnessed remotely.
This comes as no surprise due to the risk and consequences that could arise from remote witnessing.
It appears that remote/video witnessing can now be described as a distant memory and was seen to be used as an emergency approach only.
Individuals and legal professionals have now reverted to the traditional route of having Wills signed and witnessed in person to ensure compliance to the Wills Act and ensure the Will is validly executed.
How Moore Barlow can help
At Moore Barlow our team of experienced Wills, trusts and estate solicitors can provide you with expert advice and guidance on all aspects of estate planning, from creating a will to setting up trusts and managing complex estates. We understand that every client’s situation is unique, and we work closely with you to develop a tailored strategy that meets your specific needs and objectives.
