Written by Nicola Hawkins, Solicitor, Tax, Trusts and Estates

In January the Government announced that it was extending temporary legislation until January 2024 which would enable Wills to be witnessed remotely by video call.  

For a Will to be valid, a Will must be signed in accordance with section 9 of the Wills Act 1837. This section provides that the testator (the person making the will) must sign or acknowledge their signature in the presence of two witnesses, and each witness must sign the Will.

On the 28 September 2020 the Wills Act 1837 (Electronic Communications Amendment Coronavirus) Order 202, temporarily added to section 9. In  relation  to  Wills  made  on  or  after  31 January  2020,  and  on  or  before  31  January  2022 (now extended to January 2024),  ‘presence’  includes presence  by  means of videoconference or other visual transmission.

As the pandemic continues, the extension has been welcomed by solicitors. Although the legislation was brought in as a response to the pandemic there’s no requirement for the testator to have Covid-19. Video-witnessing can be used in other circumstances. The extension allows those who are vulnerable and in particular those who are isolating, to have the ability to put their affairs in order and ensure their Wills are signed.

Dominic Raab advised the extension is “a common-sense measure that will give vulnerable people peace of mind that their wills are recognised if they are forced to have them witnessed via video due to isolation”.

The Gov.UK website says that “the use of video technology should remain a last resort and people must continue to arrange physical witnessing of Wills where it’s safe to do so.”  When a testator is able to sign in the presence of two witnesses, they should continue to do so.

Research undertaken by the Law Society shows that only 14% of solicitors who prepared Wills since the start of the pandemic had used video-conferencing to witness a Will. This statistic shows that although it can be beneficial and has assisted the vulnerable in making Wills, the legislation has limited use. Most solicitors continue to witness Wills or advise their clients to have their Wills observed with the witnesses physically present.

Remote witnessing should be a last resort for two reasons:

• There are concerns that Wills witnessed remotely will give rise to claims against the estate

It’s harder for testamentary capacity (capacity to make a Will) to be assessed virtually  Testamentary capacity’s assessed by asking the client to summarise the terms of the will, explain who benefits under their will, explain who could have a claim against their estate and provide details of the value of their estate.

When asking a client these questions face to face, you can see whether they have any information in front of them which may prompt their responses. You can also respond easier to their body language and any comments made which may indicate they’re not happy or comfortable with the Will or the discussion. You can also be certain that communication is clear. Words can be missed more easily over a video call.

When meeting with a client face to face you can ensure they are on their own when the Will is signed. You can ask any family members or friends who attend the office or who are there when you arrive at the client’s home to wait in another room whilst you discuss the Will with the client. During a video call it’s possible for others to remain in the room, but off camera.

• The process for signing a Will virtually is more complicated and is a lengthier process as it requires additional meetings. There’s a risk the testator could die before the Will is a valid document.

In any remote Will signing it’s common that all three parties are in a separate location. The Government decided against allowing counter-part documents to be signed.  The same document must then be signed by each party, resulting in multiple virtual meetings.

The Gov.UK website provides guidance on the procedure for signing Wills remotely and this can be found here. 

The testator will need to hold the Will up to the camera showing the witnesses the front page of the Will and the page they’re signing. The testator must then ensure the camera is angled to show them signing the Will.

Ideally the two witnesses would be present in the same location so that only two meetings will be required. The testator must send the will to the witnesses.  This should be done as quickly and as securely as possible. Guaranteed next day post is recommended.

During the next call, the witness will need to hold the Will up to the camera to show the testator it is the same document and the testator should confirm their signature is on the document. The testator and the other witness must see the witness sign the document so the camera must be angled accordingly. 

If the two witnesses are not in the same location then witness one will need to send the will to witness two again as quickly and as securely as possible. The process described in the paragraph above will need to be repeated.

It’s only once both witnesses have signed is the Will legally valid. If the testator dies between the meetings there is no valid Will in place.

The meetings should be recorded and the recordings kept with the original Will. These recordings could be useful in evidencing that the testator had testamentary capacity if a claim is brought against the estate.                 

Although the Gov.UK website provides some guidance on how to make Wills, it’s lacking in detail. It’s acknowledged the Will’s not valid until all three parties have signed, but there’s no guidance on when the Will should be dated. It’s likely there will be inconsistency between solicitors on when the Will is dated.

Irwin Mitchell has a policy for remote Will signings and within that policy we have specified that each party is to date the Will after their signature. This is so that there’s evidence of when the testator signed the Will and when each meeting took place.

Our policy is also to have a different confirmation clause confirming the testator has signed the Will in front of two witnesses virtually.

Given the complexities of the process for signing a Will virtually, if this is a necessity for the testator then legal advice should be sought to ensure the guidance is followed correctly and the Will be valid.

It’s possible for a Will to be signed by the testator and the two witnesses through an open doorway or window. To ensure the Will is valid, the parties must be in the line of sight of each other. This means the parties must be able to clearly see each other sign the Will. Separate pens can be used and gloves worn to limit the transmission of germs between the parties. It’s also possible for all parties to wear face masks. As these measures enable the testator and the witnesses to sign at the same time and in the same location, they are preferred over video witnessing. These measures can still protect the vulnerable (provided they are comfortable with the measures put in place) but reduce the risks set out above, in particular the risk of the testator dying before the Will signing is complete.

It’s likely there will be further changes to the way Wills are made and signed in the coming years as the Law Commission report on Wills reform is due in the next two years. Further changes may be welcomed by the legal profession in order to modernise the process. However, for the time being the 1837 rule remains the norm and the modern approach of remote Will signings should be a last resort.

Our Wills, Trust and Estates team can help you.