Charlotte Dawes Senior Associate
Virtual witnessing of Wills: can the Wills Act 1837 advance in line with modern technology?
Understandably, during the Covid-19 pandemic there has been an increased demand of people seeking to make Wills. Currently, Section 9 of the Wills Act 1837 (“the Wills Act”) states that Wills are only valid if;
- It is in writing and signed by the testator (a person who has made a Will) or by some other person in their presence and by their direction;
- It appears that the testator intended by their signature to give effect to the Will;
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- Each witness either attests and signs the Will or acknowledges their signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of testation shall be necessary.
However, whilst social distancing, isolation and shielding are practised, the physical presence of witnesses is currently neither practical nor feasible.
As a result, the Ministry of Justice have announced that the 183-year-old legislation will be temporarily amended to relax the rules for the formal requirements of the execution of Wills. The changes are due to take effect from September 2020 for an initial period of two years, until January 2022. However, these changes will be backdated to 31 January 2020; the date of the first registered case of COVID-19 in England and Wales, albeit before the UK imposed lockdown measures in March 2020.
What are the changes?
The temporary amendments to the Wills Act provide a shift in the meaning of the word “presence” when witnessing a Will. Until now, the physical presence of a witness has been deemed essential.
The amendments allow for witnesses to be “present” via video, therefore avoiding the requirement for people to physically meet.
Ministry of Justice guidance sets out a four-stage process to follow when witnessing Wills remotely as follows (summarised for brevity);
- The testator shall ensure their witnesses can see them and the Will; by holding up the front of the Will and turning to the page they will be signing. The testator must ensure that the witnesses can see them signing their Will i.e. that they can see them physically sign, not just their head and shoulders.
- The witnesses should confirm they can see, hear and acknowledge and understand their role in witnessing the signing of the legal document. If the witnesses cannot be present with one another, they must be present at the same time via video-link.
- The Will should then be taken to the witnesses for them to sign, ideally within 24 hours. It must be the same document.
- Upon receipt of the Will, a further video call must take place, during which the witnesses must show the testator the Will and then sign themselves. It may be necessary to undertake this step twice if the witnesses are not physically together.
It is recommended that this process is recorded as evidence that the formalities have been adhered to and to be called upon in the future should a dispute arise as to the validity of a Will.
What are the potential issues with these changes?
Whilst a new way of preparing and executing Wills provides the opportunity for people to formalise their Wills during the pandemic, there are several pitfalls that may present themselves as a result of this change.
- Timeframes - Given that a Will is not valid until it has been witnessed, there is potential for an individual to pass away between signing their Will and it reaching their witnesses for signature. Witnesses will need to ensure they are prompt in obtaining the Will (ideally within 24 hours as per the Ministry of Justice guidance) to minimise a scenario whereby a testator dies before they have had opportunity to sign the Will. There is also a risk that if this scenario were to occur, that the beneficiaries under the uncompleted Will would have a claim against the witnesses if their delay was the reason why the Will was not valid.
- Technology - Whilst technology has advanced tremendously, there are still times where it fails us, and video conferencing software is prone to freezing and losing connection. As it is imperative that the witnesses can clearly see the testator signing their Will, recording the witnessing will confirm that the witnesses did in fact see the testator sign their Will clearly, to avoid this being raised as an issue in the future.
Have any other risks been considered?
As outlined in my previous article “Steps to minimise your estate being subject of a dispute”, it is widely reported that in recent years the number of contested Estates and Wills has unfortunately increased, and anecdotal evidence suggests that a Will which was witnessed remotely is more likely to be the subject of challenge than that of a Will executed by traditional methods. Grounds of dispute including testamentary capacity, undue influence and lack of want and knowledge and approval are all at risk of being heightened in the current climate. Thus, it is imperative that the risk of challenge is minimised by complying rigidly with the formalities and guidance if video conferencing is utilised to witness a Will.
In summary, given the risks involved, witnessing a Will virtually should be used as a last resort, and where possible, the longstanding formalities of the Wills Act should be adhered to.
For more information and advice on these changes, please email Charlotte Dawes.