As a result of the coronavirus pandemic, an increasing number of people are making Wills. The practicalities of completing a Will, and crucially ensuring that it has been validly executed is challenging given the social distancing rules.
As you may already be aware, a Will must be signed by the person making the Will (the testator) and witnessed by two independent people (ie not family members or those benefitting under the Will).
The law relating to Wills (Wills Act 1987) is being amended from September 2020 so the ‘presence’ of those making and witnessing wills includes a virtual presence (Zoom, Skype, Facetime) as an alternative to physical presence. The legislation will apply to Wills made from 31 January 2020, meaning it will have retrospective effect. It is envisaged that it will last until 31 January 2022 but this could be shortened or lengthened, if appropriate, in line with other coronavirus legislative measures. It will not apply to cases where the probate application is already in the process of being administered. Find more information on gov.uk.
If you (the testator) can make your Will in the usual way with your witnesses being physically present, then you should do so.
An example process of virtual witnessing
- The testator is with one of his/her witnesses, the other is on video link.
- The testator ensures the two witnesses can see him/her, each other and their actions.
- The testator should hold the front page of the will document up to the camera to show the witness who is virtually present, and then to turn to the page they will be signing and hold this up as well.
- The witnesses must see the testator signing the Will.
- The witnesses should confirm that they can see, hear, acknowledge and understand their role in witnessing the signing of a legal document. The witness with the testator witnesses the Will.
- The will document should then be taken to the other witness for him/her to sign, ideally within 24 hours. It must be the same document.
- The witness signs the will document – again virtually so the testator and first witness sees them signing the Will.
- The witness should hold up the will to the testator and first witness to show them that they are signing it and should then sign it (again the testator and first witness should see the witness writing his/her name).
Whilst this is a welcome amendment, as you can see it is not a straightforward process and should be done with extreme care. Clearly, it would be far easier for the testator and the witnesses to sign all together while socially distancing.
It should be noted that the guidance encourages people to record the video-link sessions where possible (with the consent of all parties) in case there are any disputes.
Please note electronic signatures will not be valid and all parties must sign the same document. This means the testator should sign the Will first and then ensure the witnesses sign their names within 24 hours also via video-link.