It was inevitable during the Coronavirus Pandemic that along with other changes in various industries, the legal industry had to look closely at the issue of witnessing Wills which have arisen during the period of lockdown.
With society becoming more and more reliant on digital services to get things done and keep safe at home, the legal services industry has had to adapt to cope with these changes.
The witnessing of Wills has been challenging for all legal professionals during the pandemic. Under section 9 of the Wills Act 1837 a Will must be signed by the testator (the person making the Will) ‘in the presence of’ two witnesses, to be valid. Both witnesses must be present when the person making the Will completes the signing and they must also be present when each other signs as a witness. This rule is vital to protect people against undue influence and fraud and to help protect against challenges in the future.
Ordinarily this would be a routine matter with clients attending the office to complete the signing of their Wills in the presence of our team, or if need be, we would attend a client at their home, in a hospital or care home to complete the signing. However, with so many people self-isolating or shielding, this legal requirement has proved incredibly challenging and, in some cases, not possible.
In a recent welcome move by the Government, the legalisation of the witnessing of Wills remotely has now been made law and will remain in place until 31 January 2022 or as long as necessary subject to the Pandemic. After such date, the witnessing of Wills will return to being carried out when witnesses are physically present.
Although the video witnessing of Wills has now been made legal, the use of such technology should only be used when there is no other alternative to completing the signing and the physical witnessing of Wills. This is still the preferred way to complete Wills.
Throughout the pandemic we have successfully managed to complete the lawful witnessing of Wills through windows or at a safe distance outside. This still meets the lawful requirements as long as there is a clear line of sight of the person signing their Will.
This reform means that the video witnessing of Wills is now legally recognised as long as it fulfils all requirements.
The rules surrounding the successful witnessing of Wills by video link are complex and if not carried out correctly, there is a risk of the Will not being legally valid. After the person making the Will has completed their signature, the Will needs to be delivered to the witnesses and all parties must again be present during the video link. It is not until the witnesses have completed the lawful signing, that the Will becomes legally valid.
Electronic signatures are not permitted and the rules surrounding the status of the witnesses remain the same, in that they must not be a beneficiary of the Will or related to any beneficiaries of the Will.
Although this is a welcome and positive move by the Government and this rule has been made to make the witnessing of Wills easier, it is not without risks. There is no way of knowing who else is present in the room which makes protecting against undue influence very difficult. Many people who are struggling to sign their Wills are elderly and do not have access to suitable devices. There is also the issue of a self-isolating person arranging for their signed Will to be posted to witnesses and the risk of such an important document going missing in the post. These complicating factors show why it is sometimes easier to arrange physical witnessing by adopting social distancing.
Our policy is to continue with the physical witnessing of Wills where it is safe to do so and carry out video-witnessing only in circumstances where it is unavoidable. Legal advice should be taken, and the entire process should be recorded and safely retained in the event that the Will is ever challenged.