Back in April, we looked at how the Coronavirus pandemic would cause disruption in the ordinary course of making a Will (see our original article here).
The Government has now announced that Wills can be witnessed via virtual means – as part of a temporary measure to tackle the challenges brought on by Coronavirus.
Whilst undoubtedly a positive step that will help the most vulnerable to make a Will in a safe setting, the message from the Government to the public is to “Keep Conventional and Carry On” – by making Wills in the usual way if possible to do so – and we outline the good reasons for this, below.
Under the Wills Act 1837, a Will must be signed by the testator “in the presence of” two witnesses, who must then both sign the Will in the presence of the testator. The witnesses must have a “clear line of sight” of the testator signing, and vice versa.
Under current circumstances, it is difficult to fulfil this requirement whilst also maintaining adherence to social distancing.
Add in the surge in demand for Will-making as a result of the pandemic, and this has become an issue that has prompted creative solutions – including the witnessing of Wills on car bonnets, in gardens, and through windows!
How will the law change - and for how long?
The Wills Act 1837 will be temporarily amended to state that “in the presence of” may include a virtual presence via video-link.
This reform will be backdated – meaning that Wills witnessed in this manner from 31 January 2020 will be valid – and the change will last until 31 January 2022 (though ministers may choose to shorten or extend this as necessary).
The reform will also apply to the Codicils (which require the same process of witnessing as Wills) - but will not apply to cases where a Grant of Probate has already been issued, or where the application has already been submitted.
Practicalities and risks
The Government has provided practical guidance on how to facilitate remote witnessing of Wills.
In simple terms (and not to be followed in such a skeleton form!), the procedure involves a series of recorded video calls (which the Government recommends are recorded):-
- In the first video call, the Testator signs the Will in the virtual presence of two witnesses (via a two-way video link if the witnesses are physically together, or via a three-way video link if the witnesses are apart). The witnesses must confirm that they can see the testator sign the Will
- The two witnesses will then separately sign the same Will in the presence of each other and the testator by way of a further video call or calls, which should be recorded.
The need to comply with the technicalities of the Will Acts 1837 means that there is a multitude of (arguably cumbersome) procedural points that need to be complied with.
As one example, the person signing the Will on each video call will need to hold up various pages to the camera, and the participants need to make sure that they see each other writing their names, not just their heads and shoulders.
With the introduction of at least two video calls (with the transfer of Wills required in the middle), the process is made longer and there are further risks associated with this. For example, if the testator dies before the witnesses sign, the Will is not valid.
As a result, remote-witnessing should only be undertaken in extreme circumstances where social distancing is crucial (such as for the vulnerable and those shielding).
As the Justice Secretary& Lord Chancellor, Rt Hon Robert Buckland QC MP warned when announcing the reform on Saturday, “the use of video technology should remain a last resort”.
Emily Deane TEP, STEP Technical Counsel, concurs stating that “the remote method should only be used in an emergency when conventional witnessing is impossible and extreme caution is required when taking this course of action.”
For those self-isolating or shielding, the news that they can create a Will without coming into contact with others is most welcome.
However, the risks associated with the incidental and more complex procedure of creating a remotely witnessed Will are high. The overriding message is that people should continue to create Wills in the usual manner - which is more established (and has been established since 1837), less risky, and quicker.
In this light, it is helpful that the Government have indicated that the following are suitable means in which to witness a Will (providing the testator and 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; and
- Witnessing outdoors from a short distance, for example in a garden.
If you have any questions regarding the above, please contact a member of our team.