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On 25 July 2020, the Government announced that it would introduce changes in September 2020 concerning the requirements for witnessing Wills under the Wills Act 1837.
The proposal will pass into law under the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 later this month.
The law will apply retrospectively, from 31 January 2020, and temporarily, up to 31 January 2022 although this could be shortened or extended.
The current law requires that:
The meaning of ‘presence’ has generally been understood to mean physical presence with a direct line of sight between the Will maker and the witnesses.
The new law extends the meaning of ‘presence’ to include presence by means of videoconference or other visual transmission.
In the current COVID-19 circumstances, where physical presence may not be appropriate or achievable, the modification of the witnessing requirements will allow Wills to be executed with greater flexibility and practicality.
The government has provided guidance on how individuals can properly execute Wills remotely, following the update in the law. This can be found here.
In summary, there will be up to five stages with at least two separate video calls:
As is clear from the above, the process of validly signing and witnessing a Will remotely is an involved process and there are still a number of other statutory requirements which need to be fulfilled in order to make a valid Will.
To mitigate the risks of a remotely witnessed Will being held invalid, the Will maker and witnesses should consider the following:
The use of video conferencing to execute a Will should only be used if demanded by the circumstances, and preference given to Wills being physically witnessed. It is recommended that a video witnessing is followed by physical witnessing if and when this becomes appropriate.
There are numerous aspects of the video Will procedure that could raise questions concerning validity. For instance, whether the parties were explicit in their actions when signing the Will and whether they provided a sufficient ‘line of sight’ for the purposes of being present.
There are also further issues that could be beyond the control of the parties that might render the Will invalid. These could include the Will maker passing away or losing capacity before the Will can be witnessed.
It would not be unexpected if disappointed beneficiaries sought to challenge the validity of a video witnessed Will on any of the above grounds. Individuals and practitioners should, therefore, consider carefully whether it is appropriate for a Will to be witnessed remotely and ensure that this is followed, if possible, by execution in the usual way.
Whether video Wills remain a long term feature of estate planning beyond January 2022 remains to be seen. Like many of the changes precipitated by the COVID-19 pandemic, it would not be surprising if some form of video witnessed Will remained permanent.