The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 has come into effect this month making it legal for wills in England and Wales to be witnessed by means of ‘video conference or other visual transmission’.
The new regulations have been backdated to 31 January 2020, with the effect that wills which have been witnessed virtually after this date, will be deemed valid. The announcement has been welcomed as a necessary response to the pandemic but understandably, concerns have been raised that the amendments may cause a significant rise in the number of contested wills.
The electronic communications amendment
The Wills Act provides that a testator must sign the Will in the presence of at least two independent adult witnesses. However, the practicalities of such an undertaking have been severely restricted due to the social distancing measures introduced by the Government to curb the spread of the Covid virus. In response, the same provisions of The Wills Act will still apply, but the government has now extended the meaning of “presence” for witnesses, to include virtual presence as well as physical.
As with most things, the enhanced complexity of the procedure will undoubtedly lead to an increase in complications, namely the number of contested wills. Government guidance recommends that the remote witnessing of wills should only be used as a last resort, encouraging witnesses to be physically present wherever possible. The witnessing of wills through windows, open doors and at distance outside is already permitted under the law, so long as witnesses have a clear line of sight of the testator and the will. Consequently, practioners and testators must ensure that they have exhausted all other possibilities before virtual witnessing is considered. However, as winter approaches and concerns of yet another lockdown continue to grow, it is possible that the use of virtual witnessing may become more prevalent.
The online video procedure
The testator is required to sign the will through a videoconferencing platform that enables the witnesses to see the execution of the will in real time. The will must be clearly visible to all parties during the videoconference and the signing must be conducted live. Unsurprisingly, the amendments do not provide for a pre-recorded video of the testator signing the will, as this would give rise to concerns of fraud or undue influence. Practioners have been advised to ensure that their clients make a clear plan beforehand, documenting the date and time of the will signing and the names and location of all parties that will be present, whether physically or virtually.
After the testator has signed, the same will is then transported to each witness who should then sign in front of the testator and the remaining witness/witnesses using the same method. The process can be done sequentially for each witness, but the Government has advised that it should be done as soon as possible and ideally within the same twenty-four-hour period. Naturally, concerns have been raised that the relaxation of the requirement to have two physically present witnesses may give scope to future claims of undue influence at the point of execution.
The Government has recommended that it would be prudent for each phase of the remote witnessing procedure to be recorded with the digital copies being retained by the testator. This is an opportunity for the testator and their witnesses to clearly confirm their intentions prior to execution and confirm knowledge and approval of the will they are signing. Retaining the digital copies may have the added benefit of helping to quell allegations of fraud or forgery if such a challenge is made in the future. There is government suggested wording for the testator and witnesses on the link below.
Practioners have been advised to ensure that their clients follow the correct procedure in order mitigate the risk of future challenges to the validity of a will. Accordingly, the Government has advised that it may be sensible to contact a will writing professional or solicitor if you have any queries concerning the changes in legislation. If you require such advice or advice regarding how to challenge/make enquiries as to the validity of an existing Will, please contact the specialist team at Moore Barlow on 020 8940 0017.
Government guidance on the changes to the legislation and how to ensure the requirements of The Wills Act are met when witnessing a Will virtually can be found here. https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing