Witnessing Wills - Temporary Madness?

The government has recently announced temporary changes to the law in relation to the witnessing of Wills.

Do we all breathe a huge sigh of relief? Or, does this pose further problems for us all later down the line? Section 9 of the Wills Act 1837 clearly sets out the standard formalities for executing a valid Will or Codicil:

1. The Will must be in writing and the testator must sign it, or another person must sign it in their presence and at their direction
2. It must appear that the testator intended by their signature to give effect to the Will
3. The signature must be either made or acknowledged in the presence of at least two witnesses present at the same time; and
4. Each witness must sign the Will, or acknowledge their signature, in the presence of the testator (but not necessarily in the presence of any other witness)

The government has now announced that video-witnessed Wills will now be made legal during the Coronavirus pandemic. The new legislation will be introduced in September 2020 but will be backdated to apply to any Wills and Codicils made since 31 January 2020. It is important to remember that this legislation is only a temporary measure (remaining in place until 31 January 2022) so it is not a permanent departure from the long standing 1837 Wills Act. Could this temporary measure lead to a surge in Will and Codicil instructions?

If you are someone who would find it difficult to get into the office to see your Solicitor or manage the signing of your Will/Codicil with your witnesses being physically present with you, then this may be an ideal time to review your Will with us. This temporary change may be especially useful for those of us that are shielding during the pandemic. A crucial point to note is that the use of video technology to witness Wills should remain as a last resort. If you are able to make a Will and comply with the standard formalities set out in Section 9 then you should endeavor to do so.

Whilst, the review of the legislation will be welcome for some, there is a concern that video witnessing of Wills makes the process of Will making more vulnerable to abuse. The vital safeguard of having two witnesses to the Will has been retained and this goes some way to protecting people against undue influence of fraud.

As a Solicitor, we have a duty to ensure our clients are under no undue pressure or influence to make their Will in certain terms and there may be some circumstances where video witnessing could make this more difficult. A best practice tip I have used is to ask my clients to show me the room in which they are sat when we have met using a video link. This goes some way to ensure they are on their own when discussing their Will. All other formalities and legislative requirements remain unchanged. Therefore, the legislation does not assist with some of the difficulties we have faced as a profession when assessing testamentary capacity during the pandemic.

It is vital that the person making the Will must have the requisite capacity to do so and this should be assessed by the Solicitor preparing the Will and another appropriate professional, if necessary. The 'wet signature' is not a thing of the past as the legislation does not permit electronic signatures to Wills. 

Video witnessing is a step forwards digitally however, the Will is only valid if your testator and witnesses provide wet signatures (preferably ink signatures) to the Will or Codicil. Witnessing pre-recorded videos will not be permissible so you must be on a 'live' video link when carrying out the witnessing.

Zoom or Microsoft Teams are great platforms for this as you can easily add several people at one time. Ideally, it is best practice for your witnesses to be physically present with each other if possible. It is very important to note that the government have not addressed the possibility of permitting the testator to direct a person to sign on behalf of the testator in the testator's remote presence. This does not assist people who are making Wills but who have difficulty physically signing documentation. It is unclear whether in these cases witnesses and people signing on a testator's behalf would need to be physically present or whether another nominated person could be present with the testator at the time of signing and the witnesses could be remotely present.

Does this change in the legislation assist you if you are already dealing with an estate administration?

If you are dealing with the estate administration at the moment and the Will was not accepted by the Probate Registry as being valid, as it has been witnessed via video link then the legislation does not assist you if you have already been issued a Grant or the application is already in the process of being administered. If you are at the outset of your estate administration it would be prudent to seek advice now to see if this affects you and our specialist estate administration team at Freeths can provide you with bespoke advice on this.

Top Tips!

Here are some of the practical and best practice tips that you should try and follow if you are conducting video witnessing of Wills:

• If possible, try to record the whole witnessing process. This can then be kept and will assist in the future if there are any challenges to the validity of the Will. This will also go some way in assisting the detection of any undue influence or capacity issues.
• Keeping a good record! - You should always have your Will prepared by a qualified Solicitor. One of the many advantages of this is they will keep a very accurate record of your Will making process. This ensures that even if you are carrying out video witnessing, you will have the most robust Will possible.
• STEP has provided a wealth of good practice guidance on how to carry out the video witnessing- this is well worth a read.
• Deliver the Will to your witnesses within 24 hours of signing the document. It may be best practice to pick witnesses local to you to avoid the need to post your document or for someone to travel too far to deliver the Will. It must be the same document, again, it would be prudent to pick two witnesses who live in the same household as one another if possible. If you prepare your Will with Freeths we will provide the witnesses to alleviate the burden of you dealing with these arrangements.
• Technical difficulties? If you have a loss of connection part way through, you should re-arrange the call and re-confirm to your witnesses the stages you have completed so far. The witnesses must be able to have a visual on the Will at the point of acknowledging the signatures so this must be done on video and the use of a typed chat or audio without sight of the Will should not be used.
• Confidentiality considerations - you should choose your witnesses wisely! As the witnessing process will inevitably involve the delivery of the Will signed by the Testator to the witnesses to facilitate their signing, they will have a chance to read the entire Will. This may be something that will influence who people appoint in their Wills.
• Re-executing the Will- you may wish to consider having the Will re-executed in the conventional manner as soon as possible to ensure due execution and to reduce any issues around testamentary capacity, fraud and undue influence.

This is new and temporary legislation so it is prudent to seek advice from qualified Solicitors who specialize in the preparation of Wills. As video witnessing is a last resort, at Freeths we will ensure that every other avenue is explored with you first - it could be that we could visit you in your garden to facilitate the signing!

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If you would like to talk through the consequences for your business, please email us and one of our team will get in touch