Remote witnessing of wills during COVID-19

Times have changed since the Wills Act came in during the late 1800s and, in particular, during the early days of the Government’s lockdown restrictions as a result of the COVID-19 pandemic. The required formalities provide a challenge for solicitors preparing wills and advising people on how to ensure that they are executed validly.

The Wills Act 1873 sets out the formalities to be complied with for a will to be validly executed. The will must be in writing. 

It must also be:

1. signed by the person making it (the testator), or by someone else in the testator’s presence and at his direction; and

2. the testator making the signature or acknowledge it in the presence of two or more witnesses present at the same time; and

  • each witness either attests and signs the will; or
  • acknowledges his/her signature in the presence of the testator – but not necessarily in the presence of the other witness.

There is nothing like a pandemic to make one review one’s own mortality. Demand for new wills has been high, which caused practical difficulties during lockdown as the testator and the witnesses have to be physically present together.

Wills were being witnessed by friends, neighbours and solicitors watching the testator sign over the garden fence or through the window to maintain social distancing.

In recognition of these unprecedented times, The Ministry of Justice has announced new, temporary rules, which will apply to most wills made between 31 January 2020 and 31 January 2022. The legislation to bring these changes into effect will be introduced in September 2020 and will operate retrospectively.

The testator must still sign in the presence of two witnesses and they must clearly be able to see him/her writing on the document (have a clear line of sight) but they can now do so virtually via video link.

Pre-recorded videos are not allowed – the witnesses must see the will being signed in real time. If possible, the whole signing and witnessing process should be video recorded and the recording retained, as this may be of assistance to the court in dealing with a post-death dispute concerning the validity of the will.

Not only could a video assist on the issue of whether the will has been correctly executed, but also as to whether there was an undue influence on the testator or whether they lacked mental capacity to make the will.

To avoid the risk of undue influence or fraud, the testator cannot use an electronic signature under this temporary legislation, although this is something that The Law Commission is looking into as part of its law reform project.

The will should contain a special attestation clause to say that is being witnessed remotely and whether a recording of it is available.

Key points for witnessing a will 

  • The testator (person who makes a will) should check that the witness can see him/ her, each other and their actions
  • The testator should hold up key pages of the will in front of the camera to show the witnesses
  • Before signing, the testator should ensure that the witnesses can see him/her actually writing his/her signature on the will
  • If the witnesses do not know the testator, they should ask for confirmation of the person’s identity – such as a passport or driving licence
  • The witnesses should confirm that they can see, hear, acknowledge and understand their role in witnessing the signature of a legal document
  • The witnesses 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
  • Ideally, the witnesses should sign the will within 24 hours of the testator doing so. The longer the period of time between the testator and the witnesses signing the will, the  greater the potential for problems to arise
  • The testator and the other witness must see the other witness sign the will or acknowledge his/her signature to it
  • If at all possible, the signings should be recorded
  • The attestation clause should reflect that the will has been executed remotely

Whilst this temporary legislation may enable a person to make a will during the extraordinary times we are experiencing at present, remote execution of wills is not risk-free and should be a last resort. Apart from the potential for fraud, there is the risk that an elderly or terminally ill testator dies before the witnesses sign the will, in which case the will is invalid.

Year on year, an increasing number of wills is challenged. The legal profession predicts that the new legislation could lead to a greater surge in such claims on the basis that the proper formalities to make a valid will have not been met.

Birkett Long is the only law firm in Essex with a dedicated team of contentious trust and probate solicitors. 

If you want advice on whether you have grounds to challenge the validity of a will, then contact Amanda Smallcombe on 01206 217395 or Amanda is the Partner who leads our team and has been a member of the Association of Contested Trust and Probate Specialists since 2010.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.