Making a will online or from home is now easier than ever with witnesses now able to witness and sign them on a video call, rather than in-person.
What are the new rules on the witnessing of wills?
In the ongoing COVID-19 pandemic it had become a challenge for those shielding or self-isolating to follow one of the core rules of making a will – namely it being witnessed by two people in person.
In response to this, the Government has amended the law (the Wills Act 1837) to state, that whilst this legislation is in force, the ‘presence’ of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence.
The new rule will be applicable to new wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales, except:
- cases where a Grant of Probate has already been issued in respect of the deceased person; or
- the application is already in the process of being administered.
From what date are the new rules on video-witnessing of wills effective and for how long?
The new rules on video-witnessing of wills are retrospective as they will be applicable to wills made between 31 January 2020 and 31 January 2022.
Although video-witnessing has been permitted, the advice remains that people should make wills in the normal way if they can.
When the new law ceases to be in force, people will only be able to make new legal wills using conventional methods.
The legislation also applies to codicils (documents that formally modify or amend an original will). Codicils must satisfy the same signing and witnessing rules that are involved in the making of a will.
What is the current law on making wills?
The law applicable to wills in England and Wales is the Wills Act 1837.
The original legal requirements for making and witnessing a will remain unchanged. These requirements are contained in Section 9 of the Act which are as follows:
No will shall be valid unless –
(a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
Additionally, the law requires the person making the will to ‘have testamentary capacity’ – that they know fully what they are doing and are able to express their intentions – and that they are not being unduly influenced by anyone.
For witnesses, the current law allows an executor to be a witness. However, a beneficiary from the will, or their spouse/civil partner, cannot be a witness without the gift to them becoming null and void.
‘Mature minors’ are allowed to witness a will, however blind persons cannot.
There is a general assumption that a witness should have testamentary capacity, i.e., that they know fully what they are doing and are able to express their intentions – and that they are not being unduly influenced by anyone.
What is the distanced witnessing rule – ‘clear line of sight’?
In the existing law, a witness must have a ‘clear line of sight’ of the will-maker signing and understand that they are witnessing and acknowledging the signing of the document if they’re not able to sign and witness the will in the same room due to self-isolation or social distancing rules.
The person making the will must also have a clear line of sight of the witnesses signing the will to confirm they have witnessed the will-maker’s signature (or someone signing on their behalf and at their direction).
Here are a few examples of a properly executed will during the pandemic within the existing law, so long as the will-maker and the witnesses each have a clear line of sight:
- witnessing through a window or open door of a house or a vehicle
- witnessing from a corridor or adjacent room into a room with the door open
- witnessing outdoors from a short distance, for example in a garden
How to video-witness a will?
It does not matter what kind of video-conferencing platform, application, or device is used provided the will-maker and their two witnesses each have a clear line of sight of the writing of the signature..
To reflect this, the will-maker could use the following example phrase:
‘I, full name, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’.
It’s important to note that it has to be live video conferencing in real-time and not a pre-recorded video being witnessed.
In other words, the witnesses must see the will being signed in real-time. The person making the will must be acting with capacity, of his free will, and in the absence of any undue influence.
If possible, the whole video-signing and witnessing process should be recorded for future reference.
If the will is challenged, the recording may assist a court in concluding whether the will in question met all the legal requirements and whether there was any undue influence, fraud, or lack of capacity.
Here are some examples of video-witnessing being appropriately used:
Video-witnessing a Will Example 1
the testator (T) is alone whilst witness one (W1) is physically present with witness two (W2).
Together, W1 and W2 are on a two-way live video-conferencing link with T.
Video-witnessing a Will Example 2
T, W1, and W2 are all physically separate in their own respective locations. They are all connected by a three-way live video-conferencing link.
Video-witnessing a Will Example 3
T is physically present with W1, and they are connected to W2 by a two-way live video-conferencing link.
Video-witnessing a Will Example 3
T is physically present with a person signing the will on their behalf (and at their direction), and connected to W1 and W2 by two or three-way live-action video-conferencing (depending on whether W1 and W2 are in the same or separate locations)
What would the ‘signing and witnessing of a will by video-link‘ process look like?
Signing and witnessing by video-link should follow a multi-stage process as follows:
- The person making the will ensures that their two witnesses can see them, each other, and their actions.
- The will-maker or the witnesses should ask for the making of the will to be recorded.
- The will-maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well for everyone to see.
- By law, the witnesses must see the will-maker (or someone signing at their direction, on their behalf) signing the will. Before signing, the will-maker should make sure that both witnesses can see them actually writing their signature on the will, not just their back or head and shoulders.
- In cases where the witnesses do not personally know the will-maker, they should ask for confirmation of the person’s identity – such as a passport or driving licence.
Both witnesses should then confirm that they can see, hear (unless they have a hearing impairment), acknowledge, and understand their role in witnessing the signing of a legal document (will). Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.
- The will document should then be physically taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document that they witnessed on the video-link
- A longer period of time between the will-maker and witnesses signing the will may be unavoidable (for example if the document has to be posted) but it should be borne in mind that the longer this process takes the greater the potential for problems to arise.
- A will is fully validated only when the will-maker (or someone at their direction) and both witnesses have signed it and either been witnessed signing it or have acknowledged their signature to the will-maker. This means there is a risk that if the will-maker dies before the full process has taken place the partly completed will is not legally valid.
The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign.
- Both parties (the witness and the will maker) must be able to see and understand what is happening.
- The witnesses should hold up the will to the will maker to show them that they are signing it and should then sign it (again the will maker should see them writing their names, not just see their heads and shoulders).
- Alternatively, the witness should hold up the signed will so that the will maker can clearly see the signature and confirm to the will maker that it is their signature. They may wish to reiterate their intention, for example by saying: “this is my signature, intended to give effect to my intention to make this will”.
- This session should also be recorded if possible.
- If the two witnesses are not physically present with each other when they sign then step 4 will need to take place twice, in both cases ensuring that the will-maker and the other witness can clearly see and follow what is happening. Whilst it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.
Consideration may be given to the drafting or amending of the attestation clause in a will where video-witnessing is used. The attestation clause is the part of the will that deals with the witnessing of the will makers signature. For video-witnessed wills it may be advisable to mention that virtual witnessing has occurred, along with details of whether a recording is available.
If you have any questions about this process you are advised to consult a solicitor or will-making professional.
Professional bodies, such as the Law Society and STEP, are expected to be issuing their own guidance to their members on this process, and any such material should be read alongside this guidance.
Are electronic signatures on the will legal?
Signing a will with electronic signatures is not allowed in the new legislation due to the risks of undue influence or fraud against the will-maker.
These risks were identified by the Law Commission in its 2017 consultation paper on wills. The Law Commission is undertaking a law reform project which will include consideration of the possibility of allowing electronic wills in the future.
Are counterpart wills allowed for video-witnessing?
The term ‘counterpart wills’ means two copies of the same will being prepared and whilst one copy is signed by the will-maker the witnesses sign another copy of the same document. The two counterpart documents between them constitute one valid will.
However, counterpart wills are not allowed to be signed and witnessed over video calls in England and Wales in the belief that the risks outweigh the benefits at this time. Such risks include there being multiple versions of the will (with different contents), the witness signing the wrong document, and the risk of undue influence and fraud.
How can I write my will?
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Go ahead and make a will today and protect your interests, assets and loved ones.