Witnessing Wills via video calls

Temporary legislation is being enacted to amend s9 of the Wills Act 1837 by way of s8 of the Electronic Communications Act to provide that the witnessing of Wills may take place via video conferencing facilities. This should come into force on 28^th September 2020.

Due to the ongoing Covid fight, social distancing and self-isolation remains very much part of daily life and will do for the foreseeable future.  This has caused various issues for clients and indeed the legal profession.  Whilst some clients have been able to source independent witnesses and execute their Wills by maintaining a safe distance, this is not possible for all clients who may be shielding, vulnerable or unwell.  There are also strict requirements on the witness as if this was a beneficiary of the Will or a spouse/civil partner of a beneficiary, they must not act as a witness as this would invalidate their legacy!

The legislation will have retrospective effect from 31 January 2020 and will be in place until 31^st January 2022.  There is no preference as to what form of application is used for video conferencing, however, it is important that the following points are adhered to:

• We will need to ensure that the usual checks are carried out to ensure that the client has knowledge and understanding of the Will, as well as a check as to mental capacity;
• The client will need to hold up the front of the Will to show to the witnesses and then turn to the page they will sign, again this should be held up for the witnesses to see;
• The client should then state “I [NAME] wish to make a Will of my own free will. I am now signing the Will in the presence of [WITNESS NAMES] who are witnessing it remotely”;
• The client and witnesses must have a clear line of sight of each other at the time of the signing of the Will and the parties should confirm this to one another;
• The witnesses may not witness a pre-recorded video of the client signing a Will, this must be carried out in real time;
• The parties must be able to hear each other and it is recommended that the call is recorded, so as to ensure that there is record of all requirements being complied with;
• The Will shall then be sent to the witnesses to sign, the above steps will need to be carried out by a further two video calls between the parties but with each witness holding up the Will during each video link, the same visibility and audio checks being carried out.

It is important to note that whilst the Will must be dated on the date that the client signed this, the Will is not valid until the witnesses’ signatures have been added.

Whilst witnessing a Will in this way is not recommended for everyone and raises its own issues and procedures which must be followed, for some, this will be an ideal solution to allow them to put their affairs in order whilst restrictions remain in place.

For more information and guidance about this or any other private wealth matters, please contact Jess Beddows.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.