Where there’s a will there’s a new way of witnessing it

The law covering how a will can be witnessed in England and Wales is just about to be updated to include the virtual electronic witnessing of wills, in certain circumstances.

This is as a direct result of the lockdown caused by Covid-19. Backdated to January 2020, the new law allows anyone who has been isolating or shielding, and who has access to video software such as Zoom or FaceTime, to get their signature on their will remotely witnessed online. 

The original Wills Act of 1837 stipulates that wills need to be witnessed in the ‘presence of’ at least two witnesses. This has proved to be almost impossible to do properly during lockdown, with many solicitors not having access to offices in order to arrange suitable appointments to witness signatures.

This recent amendment means that the established case law, that allows a witness to observe the signing through a window or door as long as they are in clear view, now extends to live video streaming, just as long as all parties can clearly see and hear what is taking place. 

Under the Electronic Communications Act 2000, a statutory instrument will be enacted in September 2020 stating that the existing phrase ‘in the presence of’ now means either in the physical presence of, or in the virtual presence of (via video link).

Virtually starting the year again

The amendment to the law will be backdated to 31 January 2020, in order that it covers all wills made during the pandemic. It will also be in place up to 31 January 2022, or longer if it is felt necessary to do so. 

However, the Government are also reserving the option to shorten the term too. Once the law reverts back to traditional forms of witnessing, then that will once again have to be performed by someone who is physically (and not virtually) present. 

A last resort

As welcome as it is, this change in the law should only be viewed as a last resort. With remote witnessing being used only once all other physical witnessing options have been explored and found to be impossible. 

Where remote witnessing does take place, then strict precautions must be in place to ensure that fraud and coercion are not present. The witnesses must understand what it is that they are observing and they will not be able to ‘witness’ a pre-recorded video of a will signing.

The Ministry of Justice states that testators (those making a will), when getting it witnessed remotely should make a formal statement such as “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”

All signatures must all so be ‘wet’ as remote electronic signatures are unacceptable.

If possible, the video stream should also be recorded and kept as a record of events.

Socially distanced alternatives to video technology

As The Ministry of Justice have stated that ‘people must continue to arrange physical witnessing of wills where it is safe to do so’. With that in mind, they suggest that that witnessing wills in the following ways are an acceptable execution of the legal requirement during the pandemic, provided that the testator and witness each have a clear line of site:   

  • Witness through a window, or open door of a house or vehicle
  • Witness from a corridor or from an adjacent room into another room through an open door
  • Witness outdoors, from a short distance.

All wills still need to be signed by two witnesses who are not beneficiaries and please keep in mind that electronic signatures are unacceptable.

The longer-term future

The Government has committed to considering ‘wider reforms to the law on making wills’. In the meantime this concession regarding the witnessing of wills during the restrictions imposed by the pandemic should go someway to helping relieve the stress associated with creating or amending bequeathments during lockdown.

In Scotland the law has also been temporarily amended to allow a lawyer to act as a witness via a video conference, just as long as they are not appointed as an executor, either directly or through a trust.

As always, we at Bridgewater Financial Services are here to provide expert and independent advice on any questions you have regarding making a will, Inheritance Tax Planning or any other financial enquiries you may have.

You can also see full the guidance on making wills via video conferencing in England and Wales by visiting GOV.UK. 

 

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