Scottish Wills Permitted To Use Video Witnesses

Given the restrictions imposed on solicitors and Will writers whilst in a lock down situation, Scottish Law has been amended to allow video conference facilities to assist in witnessing a testator signing their Will.

Social distancing and isolation as a result of measures to reduce the spread of Covid-19 is causing huge difficulties for the legal sector. Traditional methods can no longer apply when drafting Wills as impartial witnesses can no longer physically watch the signing of a Will.

The Scottish Law Society has suggested that, in these unprecedented times, the solicitor or Will writer can act as the witness on a video call as long as they are not excluded by becoming executor directly or through a trust company.

If the solicitor or someone on the video call has witnessed the testator sign all pages of the document, they can then ‘legitimately sign and complete the signing details upon receipt of the signed will.’ As long as the document is signed directly after receiving it, the emergency legislation will acknowledge it as being completed in one continuous process.

All videos should be recorded and archived with the will to help in the case of anyone contesting a Will or contentious probate claim.

The ‘best practice for taking instructions and arranging execution in relation to wills when it is not possible to meet with the client’ states:

“It may be however that a suitable witness is not available and able to be physically present when the client is in a position to sign the will. It may then be feasible to arrange a video link with the client. If this can be done, the solicitor can witness the client signing each page (taking care that the solicitor is not excluded from being an effective witness, for example by being appointed executor directly or through a trust company)or have someone else on the video call do so. The further opportunity may then be taken to assess the capacity of the client and, using their professional judgement, the solicitor can consider whether any undue influence is being exerted on the client.

“The will can then be returned to the solicitor. We consider that the witness, as long as they have seen the client actually sign each page, can on receipt of the signed will, legitimately sign and complete the signing details on receipt of the signed will. We would anticipate that this would be deemed to form one continuous process as required by the legislation.”

The advice states that those drafting the Will still need to ensure that due diligence checks concerning the capacity of the testator and safeguards relating to undue influence are satisfied before a new will can be created or previous will updated.

If any person wishing to draft a will is not able to make visual contact using online video facilities, then the process cannot be completed by telephone.

In these circumstances the guidance suggests the testator could clearly write their own will or testamentary instructions to ensure that any final wishes are recorded.

Stakeholders in England and Wales are now looking for similar clarification to help with the increased demand during these difficult circumstances.

Click here for the full guidance.

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