30 July, 2020
The government is introducing temporary legislation in September to allow the witnessing of Wills in England and Wales by video conferencing software such as Facetime, Zoom and Skype. Any Will witnessed by video technology will be valid, on the proviso that the quality of the sound and video was sufficient to see and hear what was happening at the time. The change is back dated to be effective from 31 January 2020, in order to reassure the public regarding any Wills that may have been remotely witnessed during the coronavirus pandemic. It will not apply where probate of the Will has already been granted in the estate of a deceased person, nor where an application for a Grant of Probate has been submitted and is being processed at the probate registry.As the law currently stands, the Will Act 1837 states that a Will must be executed by the testator "in the presence of" at least two witnesses being together at the same time. Witnesses cannot be beneficiaries of the Will nor be married to beneficiaries.
The changes will be effective for two years until 31 January 2022 - the term can be shortened or extended by the government for as long as deemed necessary, after which time Wills must return to being made with witnesses who are physically present. However, the Law Commission has been asked to devise a more permanent solution.
Remote witnessing is only being permitted as a 'last resort', and testators are advised to arrange physical witnessing of Wills where it is safe to do so. Where video conferencing is used, strict precautions must be taken to deter fraud or undue influence. The usual requirements continue to apply; there are two witnesses, they understand they are witnessing and acknowledging the signing of the Will. It will only be permissible to witness a live video of a signing, not one which has been pre-recorded.
The Ministry of Justice recommends that at a remotely witnessed signing, testators should make a formal statement that "I, first name, surname, wish to make a Will of my own free will and sign it here before these witnesses (and name them) , who are witnessing me doing this remotely". Signatures must be 'wet' and remote electronic signing will not be allowed. The whole process should be recorded, if possible, and the recording retained (which will have data protection implications). Once the Will has been signed by the testator it would be posted to the witnesses, who sign it themselves during live video conferences.
Whilst it can be seen to be a welcome step for those who are shielding or self-isolating during the pandemic and brings England and Wales in line with many other countries, there are some who are of the view that it is unnecessary, at risk of being open to abuse and fraud and likely to cause increases in inheritance litigation.
For someone who is self-isolating, there poses the question of how they would actually get the Will to the witnesses. They would either need to go out to post it themselves or ask someone to collect it from them. That being the case, they could probably have got people to witness in person at a distance over the garden wall or through a window.
Other risks include the signed Will being lost or intercepted in transit to the witnesses or the testator dying before the witnesses have actually signed.
There could also be a big impact for vulnerable people. How does someone know when they are witnessing a Will by video conference if there is someone just off camera, putting pressure on an elderly or vulnerable testator to sign against their wishes? Even if the witness asks for a 360 degree view of the room, it cannot be guaranteed that no-one else is there. The current requirements for witnessing Wills are more protective and make it harder for someone to be unduly influenced to make a Will against their wishes.
The Law Society said the reforms will "help alleviate the difficulties that some members of the public have encountered when making Wills during the pandemic". However, it said the government needs to ensure the legislation is properly drafted "to minimise unintended consequences and ensure validity".
The Society of Trust and Estate Practitioners (STEP) are urging that extreme caution is exercised if a decision is made to participate in the remote witnessing of a Will prior to the legislation coming into force. It is unclear whether the current law permits remote witnessing, the precise scope and operation of the legislation is also unclear at present and it cannot be guaranteed that the proposed legislation will actually come into force.
The retrospective element may also have limited effect. Wills which have already been witnessed remotely between 31 January 2020 and the date the legislation comes into force, would on the face of it fall within the legislation. However, those Wills were completed without the knowledge of specific criteria which has yet to be announced. If, when the criteria is known, it is established that those Wills do not comply then they will, in fact, be invalid.
It is important to stress that the remote method of witnessing Wills 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.
For more information contact Jane Burbidge in our Wills, Probate, Tax & Trusts department via email or phone on 01772 220156. Alternatively send any question through to Forbes Solicitors via our online Contact Form.