Video Witnessing Of Wills – A Sign Of The Times?
Times of crisis often herald a departure from established practices and tend to accelerate changes that were already on the horizon.
The formalities surrounding Will signing are an example of the usual glacial pace of change that have been eschewed in favour of quicker fixes, needed to address the difficulties brought about by the global pandemic.
There had been numerous calls for the government to change Will signing requirements given the problems caused by lockdown and social distancing – particularly given that England was behind the curve when compared with other jurisdictions. Some practitioners had even argued that remote witnessing was already permitted under the currently drafted statute. Therefore, in many ways it is positive news that the government has listened and introduced a relaxation of the rules, albeit for a limited time period.
On 25 July the Ministry of Justice announced the planned legalisation of remote witnessing Wills “as long as the quality of the sound and video is sufficient to see and hear what is happening at the time”. The Wills Act 1837 will be (temporarily) amended so that the “presence” of those making and witnessing Wills includes virtual presence, via video-link.
When witnessing remotely, certain formalities must be complied with. For example, the two witnesses must each have a clear line of sight of the writing of the signature (or someone signing at the testator’s direction, on their behalf); it must happen in real time (i.e. the witnesses cannot simply witness a recording); the execution clause should be changed to note that witnessing is being provided remotely; and ideally, the process should be recorded.
Counterparts and electronic signatures are still not permitted. After the Will has been signed by the testator, the single physical copy of the Will must then be sent to the individuals who have witnessed remotely for them to add their signature and details in the presence of the testator (i.e. over a separate video call). This means there is a risk that if the will-maker dies before the full process has taken place, the partly completed Will would not be legally effective.
The revised legislation will apply to Wills made since 31 January 2020 (unless the Grant of Probate has already been issued or the application is already in the process of being administered) and will be in force until 31 January 2022 (but this period can be shortened or extended as necessary).
Technically, these changes are going to be effected by way of statutory instrument under the Electronic Communications Act 2000, which will amend the requirements of the Wills Act 1837. This will be enacted in September. In other words, as things currently stand this change is not yet law and any existing guidance is subject to change as the legislation passes through parliament. All of this adds an element of uncertainty, particularly as we have not even had sight of the draft legislation.
Is it all good news?
Although the possibility of video witnessing is undoubtedly a source of reassurance for those unable to execute their Will in accordance with the traditional requirements, there are downsides to its introduction. A loosening of legal requirements always has to be balanced against the need to protect the vulnerable and those likely to become victims of coercion or undue influence. Having witnesses physically present does help reduce (if not entirely remove) the risk of a testator being bullied by over-bearing or unscrupulous family members. Assessing capacity is also harder over a video call and so where there are any capacity concerns, we strongly recommend signing in the physical presence of a suitably qualified professional.
All of this means that challenges to Wills become more likely. Remote witnessing gives another potential pressure point which could be leveraged in a Will challenge. Coupled with reports of already higher rates of contested Wills, the position only looks set to get worse (unless of course you are a litigator!). The additional risks posed by witnessing remotely make it vital for advisers to do all they can to ascertain full capacity and be alive to undue influence risk – potentially joining the video call to assist with this.
So how should Wills be executed now?
However, video witnessing should only be used as a last resort. Where it is possible to have a Will witnessed by two individuals who are physically present – this should be done. If the only option is to witness remotely, once circumstances permit, the Will should be re-executed following traditional methods. Whilst the changes offer some comfort for those who have had to fall back on remote witnessing during lockdown, these measures are only a temporary sticking plaster to solve an acute problem, they are not a wholesale re-write to the long-standing requirements for Will signing.