On 28 September 2020 the law relating to the witnessing of Wills changed, and this change was backdated to 31 January 2020, to provide that Wills signed and witnessed over video during the pandemic would be valid.
What is the aim of the new rules?
This is a fundamental change to how Wills can be validly executed. Under English law, Wills need to be signed in the "presence" of two independent witnesses, who must then sign the Will in the "presence" of the testator. In this context, "presence" meant physical presence – i.e. they would have to be physically with or near or in sight of the testator.
Given the COVID-19 pandemic and the difficulties individuals may have had in finding two independent witnesses in lockdown conditions, the law has been changed to allow witnessing by video means.
The new legislation (catchily titled The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020) amended the Wills Act 1837 by stating "… in relation to Wills made on or after 31 January 2020 and on or before 3 January 2022, "presence" includes presence by means of videoconference or other visual transmission".
This means a witness to a Will can do so via video conference means – i.e. over MS Teams, Zoom etc etc.
Will 'Video Wills' take off?
During the pandemic, video-conferencing has become widespread. Particularly during periods of lockdown or self-isolation, being able to execute a Will with witnesses appearing over video could offer a testator reassurance during a time of great panic and uncertainty that their Will can be validly made.
But of course not all testators will be 'computer literate' and whilst Zoom and others have become technological giants of the 21st century, for some people making and witnessing Wills by video means will not be easy or perhaps desirable.
What are the risks?
One of the issues for practitioners is that if witnesses are only "present" by video means, they may not have an appreciation of the circumstances or context in which the testator is signing the Will – is there someone influencing the testator 'off camera', for example?
Witnesses might face difficulties in understanding whether and to what extent the testator knows what they are signing. The new signing approach, coupled with the (for some) new technology, can lead to confusion and invalidly executed or incorrect Wills. This could all lead to a rise in estate disputes in future years.
Law Society guidance
The Law Society has issued guidance to help testators and practitioners with the new rules. A non-exhaustive summary of the stages in the signing process are set out below:
Stage 1 - Ensuring witnesses are present on camera and if possible the video execution should be recorded. All pages of the Will should be held in front of the camera including the signature page. The witnesses must then see, via video conferencing means, the testator signing the Will.
Stage 2 - Witnesses ideally should all be present at the same time by way of a two or three-way video-link.
Stage 3 - Ideally the Will should be taken to the witnesses for them to sign within 24 hours of the testator's signature.
Stage 4 - A further video call should take place where the witnesses show the Will that they are now signing to the testator. All parties must be able to see and hear each other and see the witnesses sign the Will or the witnesses can clearly show their signature on camera.
Stage 5 - Stage 4 is to be repeated if the witnesses are not jointly present (over video link) and consideration should be given to the wording of the attestation clause in the Will where each party signs to confirm that virtual witnessing has occurred and that a recording of the video is available.
Ultimately, a Private Client practitioner would never know for certain if a person had in fact witnessed a Will as it is not clear from a video conference that the witnesses are actually present when the testator signs the Will. Private Client practitioners would, it appear, have to rely on the honesty and integrity of the testator (and their witnesses) that the Will has been witnessed according to the new 'virtual rules'.
What is the advice?
For the time being, Private Client practitioners have, where possible, maintained the status quo of arranging for Wills to be physically witnessed by arranging home visits to clients so they can ether witness the client's Will or see the witnesses signing the Will at a reasonably safe social distance and with the agreed safety measures agreed by both the client and the lawyer (and in line with current government guidance).
In our view, the witnessing of Wills by video conferencing means is a potentially important option in quarantine, self-isolation or urgent scenarios. However, we would still strongly suggest that Wills are executed with the witnesses being physically present with the testator, in order to try and avoid the risks of error, undue influence, lack of knowledge and understanding that may, ironically, be an "unseen presence" in Wills made by video conference.
We would suggest that you review your existing Will and your personal / tax planning arrangements in the current circumstances and please contact us for more information on how these emergency rules may affect you and how we can assist you in the aftermath of COVID-19.
If you have any questions or would like more information, please get in touch with your usual contact in DWF's Private Capital team.
Authors: Christopher Noel and David Webb
