By Danni Brannon, paralegal and Sarah Wintle, solicitor
When COVID-19 restrictions first came into effect in March 2020, there was a lot of uncertainty surrounding how a testator would be able to validly execute their will when they were unable to have a witness physically present at its execution. This prompted the government to create the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 to introduce a new section 9(2) to the Wills Act 1837 and allow a will to be validly executed by “video conference or other visual transmission”.
As of 28 September 2020, any wills executed on or after 31 January 2020 can be witnessed using video-conferencing software such as FaceTime, Skype, or Zoom. The will must be physically signed by the testator then posted to each of the witnesses (ideally within 24 hours), who in turn then sign the will in the presence of the testator and the other witness via videoconference. Under current legislation, testators will be able to execute their wills remotely up until 31 January 2022.
The Ministry of Defence has published their guidance on the execution of a will by way of video conference, which can be found here.
This guidance sets out the steps testators can take to ensure that the will is validly executed and to minimise the risk of successful challenges to its validity. The guidance recommends that:-
- The execution of the will is recorded, if possible, and that the recording is retained;
- The testator shows the first page of the will to the witnesses, followed by the signature page, as part of the initial videoconference; and that
- The witnesses have a clear line of sight to the signature page in order to witness the testator signing their name on the will
Furthermore, it is important that the testator follows the MOJ’s guidelines carefully, as if the will is rendered invalid on the grounds that this guidance was not followed, it will mean that either a previous will would be deemed valid or that the intestacy rules would apply. This may mean that a testator’s wishes as reflected in the invalid will are not followed.
This may also be the case if a testator becomes incapacitated or dies before the witnesses are able to sign the will. It is therefore very important that a testator chooses witnesses who are reliable and that they can trust to sign and return the will immediately; if the full process has not taken place the partly-completed will is not legally effective.
With only 46% of over 75s being regular internet users (Office for National Statistics, 2019), it is also essential to ensure that the testator is comfortable with using technology to execute their will. It is also important to ensure that in the event of connection issues preventing the witnesses from seeing the will being signed, that this is rectified by the testator acknowledging their signature in the witnesses’ presence.
In accordance with the MOJ’s guidelines, it appears that the safest way to execute a will via videoconference would be by ensuring that it is recorded, and that the recording is safely stored. Not only would this provide evidence that the execution and witnessing were carried out correctly, but it would also allow for the footage to reviewed and assessed for any indications of undue influence, fraud, or lack of capacity.