Will Signatures Witnessed By Video Link To Be Made Legal Under Temporary Measures

At the end of July, the Government announced temporary measures to allow the signing of a Will to be witnessed by video in England and Wales. The change in the law is a result of the coronavirus pandemic and the lockdown measures implemented by the Government. These circumstances have made it difficult for people shielding or self-isolating to adhere to the current laws of making a Will, specifically in relation to having the signing of the document being witnessed.

The legal reforms will remain in place until 31st January 2022 or longer, if required, and will also be backdated to 31^st January 2020 – the day of the first confirmed case of the coronavirus in the UK.

However, it is important to note that the use of video conferencing technology can only be used in instances where it is impossible or unsafe to witness the signing of a Will in person.

Witnessing of Will signatures – existing laws

Under existing laws (the Wills Act 1837), a testator’s signature in a Will is not deemed to be valid unless the signature has been made in the presence of two witnesses. The witnesses must be present (in-person), when the testator signs the Will and then must sign the Will themselves, whilst the testator is also present.

Furthermore, current laws dictate that both the testator and witnesses must be able to clearly see the Will when the signatures are made.

Following these laws has been difficult during the coronavirus lockdown, and many people have resorted to video conferencing technology as an alternative. However, it was unclear whether such action was acceptable and in line with existing laws.

Witnessing of Will signatures by video – new laws

The measures, announced on 25^th July 2020, were made via new legislation in September 2020 and will be an amendment of the Wills Act 1837.

These new laws are designed to maintain the important safeguarding procedures of requiring two people to witness the signing of a Will, protecting testators from undue influence and fraud, whilst allowing parties to adhere to protective coronavirus measures.

The Ministry of Justice has provided the following guidance in relation to the new laws:

• Stage one – Both the testator and witnesses have to be able to see one another clearly and witness all actions that they make during the video call, e.g. witnessing the signatures on the Will itself, seeing the front page of the document, and all pages that are turned to and signed. This measure allows for the current laws in relation to the clear line of sight rules to be adhered to.
• Stage two – All parties must confirm that they can see and hear each other at the start of the video call, and the witnesses must acknowledge and understand their role in witnessing the signing of the Will.
• Stage three – Once the Will has been signed by the testator (whilst being witnessed), the document must be sent to the witnesses for their signatures, preferably within 24 hours, if possible.
• Stage four – Once the witnesses receive the Will that has been signed by the testator, they must sign the Will following the same procedure above (stage one). Their signatures must be seen by the testator and the other witness during the video call (if the two witnesses are not physically together). The Will becomes valid once both witnesses have signed the document, and so this process may have to be repeated for the second witness.

Other important factors to bear in mind include:

• As mentioned above, the use of video conferencing technology to witness the signing of a Will must only be used as a last resort.
• Electronic signatures are not allowed. The Will must be physically signed by both the testator and witnesses.
• The video link must show the testator or witnesses signing the document, not just their heads and shoulders.
• Witnessing the signing of the Will via a pre-recorded video is not permitted. The signing and witnessing of the signature must take place at the same time.
• When the testator signs the Will, it is advisable for them to say something along the lines of “I first name, surname, wish to make a Will of my own free will. I am now signing the Will before these witnesses (who should both be named), who are remotely witnessing me sign it.”
• If possible, all video calls should be recorded and saved. The videos will assist a Court in the event of the Will being disputed.
• The reforms will not apply where a Grant of Probate has already been issued in respect of a deceased person and/or where the application is already in the process of being administered.
• The reforms will also apply to codicils, which legally amend a pre-existing Will and must follow the same signing and witnessing procedures that are required for creating a new Will.

Further guidance on making a Will using video conferencing technology can be found here.