New rules on remote witnessing of Wills

From 28 September 2020 new temporary legislation will allow Wills to be witnessed remotely through video-conferencing platforms such as Zoom and Microsoft Teams.

A valid Will is of vital importance in estate planning and to avoid disputes between beneficiaries when a person dies. Prior to the COVID-19 pandemic lockdown, the legal formalities required to make a Will have been largely unchanged since the 19th century. They require a Will to be signed in the presence of two witnesses who would then also sign in the presence of the person making the Will. Those witnesses should be independent and not stand to benefit from the Will so family members should not act as witnesses. These formalities are, amongst other things, intended to provide a clear procedure to make a valid Will; to prevent fraudulent Wills being made, and to protect people from being forced to make a Will under undue influence from others.

In response to the pandemic, many people rightly reviewed their Wills but found it challenging to comply with the legal formalities whilst under lockdown and maintaining social distancing. This is especially true of elderly people and those in vulnerable groups who were advised to minimise their contact with those outside of their household. Sadly, people in those groups are usually most in need of having a valid Will in place.

The importance of having a Will is recognised by government and the rules have been relaxed to lessen these difficulties and so that vulnerable people do not put themselves at risk. Having said that, remote witnessing of Wills should still only be used as a last resort.

What is going to change and when?

The new rules will be backdated to 31 January 2020 and remain in place until 31 January 2022, although they will not apply where an application for a Grant of Probate has already been made. During this period Wills witnessed remotely will be valid, on the proviso that the quality of the sound and video are sufficient to see and hear what was happening at the time. A video-conferencing call where only the head and shoulders of the testator are visible will not be accepted as the witness needs to see the person sign. Manual hand-written signatures, rather than electronic signatures, are still required. For a more comprehensive overview of the requirements, see our article on Video Wills: can my Will be witnessed remotely?.

What are the concerns?

There are concerns about how a vulnerable person would physically send the Will to their witnesses or the position if the person dies before the witnesses have signed. There is also the potential for increased fraud and undue influence when witnesses cannot see who else is in the room with the person making their Will.

Conclusion

Given those concerns and uncertainties about how the new rules will operate in practice, Wills should ideally be witnessed in person if it is possible to do so safely. However, difficulties with the signing formalities should not put people off making sure their Will is up to date.

Michelmores can assist with both the preparation of your new Will or review your current Will, and advise on the proper formalities to be followed to ensure it is valid.