Anyone at all familiar with the subject of Wills knows that for such a document to be valid then in broad terms:
- the Will must be in writing
- and signed by the testator (the person making the Will)
- and that the signature must be made in the presence of two or more witnesses at the same time and in the presence of each other.
This basic drill, with a few variations to cater for people with special needs, is all covered by The Wills Act 1837 which tells its own story. For a procedure to have been on the statute book for 183 years is good going. But enter Covid-19 and social distancing…. what happens now?
Well the Government has recognised the problem and has introduced a statutory instrument permitting Wills to be witnessed remotely by videoconferencing or other visual transmission (such as Zoom or Skype) while still complying with section 9 of The Wills Act 1837.
So how can a Will be properly signed and witnessed without infringing the Covid-19 restrictions and putting anyone in potential danger? The Government published its guidance on 25 July 2020 and it runs like this:
- The type of video-conferencing or device used is not important.
- Witnessing pre-recorded videos is not permitted – the witnesses must see the Will being signed in real-time.
- The witnesses and testator can all be at different locations, on a three-way link, or two can be physically together with one at a remote location.
- If possible, the procedure should be recorded.
- The attestation clause must be amended to state that one or both witnesses are witnessing remotely. The guidance suggests “I (first name, surname) wish to make a Will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely”.
The testator signs
- Before signing, the will-maker should ensure that the witnesses can see them actually writing their signature on the Will, not just their head and shoulders.
- The witnesses should confirm that they can see, hear (unless they have a hearing impairment) and acknowledge they understand their role in witnessing the signing of a legal document
- The testator should hold the front page of the Will document up to the camera to show the witnesses, and then turn to the page they will be signing and hold this up as well.
- The testator must physically sign the Will (or acknowledge an earlier physical signature). Electronic signatures are not permitted. The testator will date the Will with the date of signature.
Witnessing the Will
- The Will must then be taken or posted to the witnesses.
- The witnesses must physically sign the Will in the virtual presence of the testator, and, if possible, in the virtual or physical presence of each other.
- As with the testator, they should hold up the Will to the testator and sign (or acknowledge an earlier signature) (again the testator should see them writing their names, not just see their heads and shoulders).
- The guidance does not deal with what the witnesses should say but the following has been suggested as acceptable… “signed by me on (date) in the virtual presence of (the name of the testator) and the (virtual) (actual) presence of (the other witness) having watched the testator virtually sign on (date)”
The whole procedure is cumbersome. If the Will has to be posted to the witnesses there is the risk that the testator will die before the witnesses sign. If this happens the Will Is invalid. In fact the press release said “the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of Wills where it is safe to do so.”
But the critical thing for everyone is that they have a valid Will in place. If there is likely to be a challenge or if testators feel at all uncomfortable they would be advised to re-execute their Wills as soon as possible in the physical presence of witnesses.
And it will be interesting to see if The Wills Act of 1837 will be scrapped in due course to make way for a new style of Will-writing that embraces a video-link procedure.
Remember that C & H Stedman can advise on Will preparation and inheritance tax issues.