Ministry of Justice have Confirmed that Video Witnessing of Wills is Now Legalised

We have recently made articles in respect of the potential video witnessing of wills to be made legal, and have ensured wherever we can that the information is up to date.

The Ministry of Justice have formally announced that wills witnessed via video, i.e. Zoom, Face Time or Skype are to be made legal, which is the news that has long been expected by the Will Writing profession.

There have been lots of doubts over the last few months when the country went into lockdown, on how wills can be witnessed, while still adhering to the Social Distancing Rules in place, and also ensuring wills were still validly executed in the presence of two witnesses.

The amendment to the legislation is expected to come into force in September 2020, and will amend The 1837 Wills Act to include video witnessing, so where the current requirements is for the wills to be signed in the presence of two witnesses, their presence can now either be physical or virtual. It is important to note that inline with current law, the requirement of two witnesses will still be necessary to protect people against undue influence and fraud.

The amended legislation will also apply to codicils, which have the same signing and witnessing requirement as a will.

Justice Secretary Robert Buckland said ‘We know that the pandemic has made this process more difficult, which is why we are changing law, to ensure that wills witnessed via video technology are legally recognised’.

‘Our measures will give peace of mind to many, that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable’.

This change to the law allowing wills to be validly witnessed via video link, has a retrospective effect, so it will apply to any wills executed in England and Wales since the 31st January 2020, (which was the date of the first confirmed Corona Virus case in the UK). Providing the quality of the sound and video is sufficient to see and hear what is happening all the time. It is important to note this does not apply in cases where the Grant of Probate has already been issued to the deceased, or where the application is already in the process of being administered.

However, it is important to note that although wills can be witnessed virtually, they still need to be signed, as electronic signatures are still not permitted. The witnesses also cannot be beneficiaries, as has been the case previously.

Witnessing of wills must also be in real time, and not pre-recorded. Where possible, the signing and witnessing should be recorded, and the recording stored safely, which will assist the Courts in the event if later the will is challenged.

So how will this actually work in practice?

The Government has set out some useful guidance in stages, which is as follows:

Stage 1:

All the parties to be present, in the same Court and see one another – will writer, testator and both witnesses.

The will writer should seek express permission from the parties, that they are happy for the witnessing and signing to be recorded.

The will writer should hold up the front page of the will to the camera, and then turn to the signing page, and hold this up for all the parties to see.

The testator, whilst signing, should say the following:

I, first name, surname, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’.

The witnesses must see the testator sign the will, and it is advised they confirm that they saw the testator sign.

Stage 2:

The witness should confirm that they can see, hear (unless they have a hearing impediment) acknowledge and understand their role in witnessing the will. The witnesses can be physically present with one another, i.e. from the same household or via video link.

Stage 3:

The will should be taken to both witnesses for them to sign. The guidance states that this should be ideally within 24 hours of the testator signing the will; it needs to be the same document, as the counter parts will not be accepted.

Stage 4:

The testator and will writer must be able to see the witnesses sign the will.

The witnesses should hold up the will to the will writer, and then sign it. The will writer and testator must see them sign the will, and not just their heads for example.

Another option is for the witnesses to hold up the will where it has been signed, and confirm that it is their signatures.

It is advisable for this process to be recorded also.

Stage 5:

In cases where both witnesses are not physically present with one another, Stage 4 will need to be repeated, and on both occasions, both the will writer and testator must see the will being signed. Although is not a legal requirement for both witnesses to sign in the presence of one another, it is good practice, and we confirm that we strongly advise this to be the case.

Where wills are witnessed via video link, consideration must be given as to the attestation clause. Guidance on the form of attestation clause to use will be given closer to the time, as there is currently no recommended wording for it.

Once we have the Government guidelines on the attestation clause, we will provide a template for use.

Despite this landmark change, the Government still advise that where possible, witnessing of wills should still be carried out in the physical presence with two witnesses, where safe to do so, and the video witnessing should only be used as a last resort.

We already know that one option is to witness through a window, so the guidance is to still use this method, or similar ones where possible.

This change is expected to remain in place until 31st January 2022, or as long as deemed necessary, after which the Government has advised the signing requirements will go back to how it has been, i.e. physical presence of the witnessing. The new rules have scope to be extended or shortened as required.

Although this is a temporary measure, this is a huge and very positive step for people requiring wills to be executed, particularly by people who are still shielding or in isolation.

As always, do not hesitate to contact us.