STEP Guidance For Video Wills
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This month’s technical corner article comes from Emily Deane TEP, STEP Technical Counsel.
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The UK Ministry of Justice (MoJ) has announced the implementation of secondary legislation under the Electronic Communications Act 2000 that can be applied retrospectively to the beginning of the Covid-19 pandemic on 31 January 2020. The legislation is anticipated to come into force in September 2020 and will be in force for two years until 31 January 2022.
The new legislation which only applies in England and Wales enables individuals to video-witness the execution of their wills if they are unable to observe the normal formalities, and cannot have two independent witnesses physically present. Therefore, if someone is isolating and there is no feasible way to arrange for witnesses to be there, they can video record themselves executing their own will and it will be legally valid.
STEP has prepared some guidance for members[i], but we are keen to reinforce that the new remote method of witnessing should not be a substitute for the conventional method of physical witnesses. The remote method should only be used in an emergency when conventional witnessing is impossible and extreme caution is required when taking this course of action.
However, the guidance provides step by step advice on how to execute a will via video if it is absolutely necessary including practical suggestions in relation to signing, dating and delivery and more technical advice in relation to video recordings and audio and visual difficulties. Some more general recommendations in the STEP guidance are:
- You should make sure the will maker and witnesses are comfortable with technology and online videos. Take time to make sure everyone can see and hear the other participants and that all are comfortable proceeding.
- You should make a comprehensive attendance note even if there is a video recording, which should include your record of the reasons for witnessing via video link, your assessment of the risks and the mitigation of these, and a written record of what took place and compliance with the legislation.
- Check the will maker’s capacity, which may be more difficult in a virtual setting. Ask open questions, follow up as necessary and take notes recording your consideration of capacity, especially if there are any concerns, as normal.
- Be alert to the fact that people may attempt to use the current circumstances as an opportunity to commit fraud or other illegal acts, particularly if the will maker is vulnerable, or this is a deathbed will.
- The will maker should send the will, once it has been signed and dated, to the remote witness(es) as soon as possible. We advise that this is done, preferably by person or recorded delivery, on the same day of signing. If both witnesses are remote it does not matter which witness it is sent to first.
- Witnessing of wills via video link should only be carried out if witnessing via the conventional method is impossible.
- Re-sign and witness the will by the conventional method as soon as possible to reduce risk of challenge.
The Government has also confirmed in its guidance that it is of the view, that a will signed and witnessed in the following socially distanced scenarios will be deemed legally valid under the existing law as long as the will maker and the witnesses have a ‘clear line of sight’ to confirm that they have seen the person signing the will:
- Witnessing the will through a window or an open door of a building or a vehicle,
- Witnessing the will from a corridor or an adjacent room with the door open,
- Witnessing the will outdoors from a short distance ie. the garden.
This method of witnessing was legally ambiguous and is therefore a huge relief for anyone who has had to execute a will in this socially distanced way prior during lockdown.
The government guidance has been written in advance of enactment of the Statutory Instrument and will have to be revisited if any changes are made to the legislation as it goes through parliament. In the longer term, the government will consider wider reforms to the law of wills, which is currently the subject of a Law Commission of England and Wales consultation.
The Government opted not to include electronic signatures in the scope of this temporary reform due to the risks of undue influence or fraud but we understand that discussions are ongoing in relation to the potential implementation of primary legislation that may reduce the requirement for two witnesses to witness the execution of a will.