Covid-19 - virtual will signings are now valid
- AuthorCaroline Dowding
The global COVID-19 pandemic has meant we have had to adapt to new ways of doing things in many areas of our lives, and making a will is no different.
The existing rules of making a will
The formal requirements for making and executing wills are contained in the Wills Act 1837, which sets out the requirements as follows:
- The will must be signed by the testator (or another person in their presence and at their direction);
- The testator must intend, by their signature, to give effect to the will;
- The testator’s signature must be made or acknowledged in the presence of at least two independent witnesses who must be present at the same time;
- The witnesses must also each sign the will in the presence of the testator (but not necessarily in the presence of any other witness).
Clearly, COVID-19 has raised issues relating to the execution of wills, what with the social distancing rules, self-isolation and many people being required to shield during the peak of the pandemic.
As a result of this, the existing rules on the execution of wills are being relaxed to ensure that people who need to can still make and execute their wills safely, without worrying about this affecting the validity of them.
The new Order for making a will during Covid-19
The government recognised that complying with the existing rules for the execution of wills was extremely difficult for those in self-isolation or shielding. Therefore, on 7 September 2020, the government laid the new Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (SI 2020/952) before Parliament.
The new Order, which will allow wills to be witnessed remotely, is set to come into force on 28 September 2020 and will amend section 9 of the Wills Act 1837 in order to allow the virtual witnessing of wills.
It is important to note that the Order will be backdated to apply to all wills which have been made since 31 January 2020, and will remain in force until 31 January 2022.
The Order will provide much more flexibility to the witnessing of wills which will enable people to maintain social distance, continue their self-isolation or shielding if required, and still execute a valid will ensuring that their wishes are recorded.
What are the changes to the existing rules of making a will?
The fundamental requirements for executing a valid will still apply. The witnesses must have a ‘clear line of sight’ of the testator signing, the testator must sign in the presence of both witnesses and the witnesses must also sign the same original will in the presence of the testator. However, the new rules permit these requirements to be carried out virtually rather than requiring physical presence.
The government has published detailed guidance on the requirements for executing a valid will under the new Order, which includes the following:
- The will will not be valid until it has been signed by the testator and both witnesses;
- A live video link must be used, it is not sufficient to use a pre-recorded video;
- The witnesses must be able to identify the testator, to see that the document being signed is a will and to see the moment of signing;
- After the testator has signed, the will must be taken to the two witnesses for them to sign via another live video link, and this should ideally take place within 24 hours of the testator signing the will. The testator must also be able to see the witnesses moment of signature on the original will;
- Each video link should ideally be recorded, with all parties confirming that they can see and they understand what is happening;
- A special attestation clause should be included where video-witnessing is used;
- Electronic signatures are not permitted (due to the risks of undue influence and fraud)
- Counterpart wills are also not permitted, all parties must sign the same original will.
The guidance does however state that wherever possible, the traditional method of executing wills should be used. This is due to the increased potential for fraud and undue influence given the difficulty in ensuring there is nobody out of sight of the camera exerting pressure on the testator.
There is also a degree of risk in that the will is not valid until it has been signed by the testator and both witnesses, and if the testator were to die between signing the will themselves and the final witness signing, the will would not be valid. This could result in the testator dying intestate if they haven’t previously made a will, or an earlier will which no longer accurately reflects their wishes remaining valid.
It also remains to be seen whether the changes will result in greater scope for disgruntled family members to challenge wills executed in this way.