The Government has announced that Wills witnessed remotely via video link are to be made legal under new legislation due to be enacted in September 2020. The change to the law will have retrospective effect so that Wills witnessed remotely from 31 January 2020 (the date of the first coronavirus case in the UK) will be valid and legally accepted.
This new law is perhaps one of the most radical measures taken by the Government in order to assist society with the coronavirus pandemic and the new rules will remain in place until 31 January 2022.
What is the current law?
Currently, in order for a Will to be valid, it must comply with the requirements of the Wills Act 1837 and must be:
- made by a person who is at least 18 years old;
- made voluntarily and without pressure from any other person;
- made by a person who is of sound mind;
- in writing;
- signed in the presence of 2 witnesses, both over 18; and
- signed by 2 witnesses in your presence.
In addition a witness, or the married or civil partner of a witness, cannot be the beneficiary of the Will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the Will is valid but the beneficiary will not be able to inherit under the Will.
It is the last two elements of the current law (in bold above) that the new measures seek to address. We discussed some of the challenges that the pandemic caused in relation to executing Wills in a previous blog that can be read here.
What are the practical implications of the new law?
The person making the Will and their two witnesses still each need to have a clear line of sight of the writing of the signature. The Government has suggested that the testator could use the following phrase in the Will in order to help achieve this:
“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 Government has also outlined a 4-stage process that the remote Will signing and witnessing procedure should follow.
Other important considerations to keep in mind when executing a Will remotely are:
- the execution and witnessing of a Will must be done in real time, meaning that it is not possible to witness a pre-recorded video;
- the person making the Will must still be acting with capacity and in the absence of undue influence; and
- if possible, the video signing and witness signing process should be recorded and the recording retained, in order to assist the courts should the execution of the Will ever be challenged.
The Government has emphasised that: “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. Wills witnessed through windows are already considered legitimate in case law as long as they [the witnesses] have clear sight of the person signing it”.
They go on to state that the following scenarios would amount to a properly executed Will provided that the testator and the witnesses each have a clear line of sight:
- witnessing through a window or open door of a house or a vehicle
- witnessing from a corridor or adjacent room into a room with the door open
- witnessing outdoors from a short distance, for example in a garden.
It will be interesting to see whether remote Will signing and witnessing will become popular. Much will depend on whether the testator and witnesses have the necessary technology in order to be able to do this, and this factor could perhaps prevent those who are intended to benefit from the new law from being able to do so.
Matthew Barnett, a Partner in the Private Client team commented that:
“Although this is an obvious and broadly welcome move by the Government, and follows what other countries have already implemented, there is a legitimate concern in the industry about the potential for future challenges to Wills based on their due execution, if executed during the pandemic and under the new rules. Undue influence is an obvious area of particular concern.”
Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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