The person making a will (the Testator) must follow certain procedures to ensure that it is enforceable. This includes two people signing the will to confirm they have witnessed the Testator signing it. It has always been necessary for this to be in person with the three people in the room at the same time. Due to the pandemic, signing a will has become harder due to social distancing measures. The government has responded to this issue by allowing wills and codicils to be signed remotely via a live video link. This law has been backdated from 31st January 2020 and will be in force until January 2022
The process of signing over Video
When using video link, the witnesses must have clear sight of the Testator’s face and their hand as they sign their will. It is vital that this is done live and not by a pre-recorded video. Once the Testator has signed over live video, the Will must be taken or sent to each witness as soon as possible. This must be the original will and not a copy and they must sign the will by hand, it cannot be done electronically as it would not be the original document.
Once the first witness has the will, they must sign the will on live video with the Testator and the second witness. The same rules apply meaning their face and hand must be visible as they sign. The will is then given to the second witness and the process is repeated. It is advised that whilst the live video is underway, a separate recording is made of each signing. Additionally, if possible, after signing the will that person holds the will up to the camera with their face in the picture whilst the others verbally acknowledge the signing. It may also be helpful to include a clause in the will addressing the witnessing method used. These steps will help to confirm the legality of the will and will serve to defeat any potential claims about the validity of the will.
Although, the new legislation allows for signing over video until January 2022, it is safer to do this in person wherever possible. When making your will with us, members of our team will be available to witness your signature whilst complying with Covid-19 measures. As solicitors we have a duty to ensure that your best interests are put first which means that we take extra precautions to ensure there is no identity theft, fraud, or undue pressure present. This is particularly important where a Testator is elderly or unwell. We will take careful steps to ensure the Testator is not leaving themselves open to potential claims on their estate.
Will signing over video link is likely to bring about more claims of undue pressure or abuse and more challenges to the validity of the will due to procedural errors during signing the will. Once more, a solicitor will be able to guide you to ensure your will is validly signed.
Another issue may arise if the will is lost or damaged, for example, during transit. This can be avoided by hand delivering the will to both witnesses. Delivering the will, whether by hand or by post, will cause delays in completing the requirements for the will to be valid. Usually the signing would happen in a matter of minutes, however using the video link could take days or even weeks. This may cause particular issue if the Testator were to pass before the will was signed by both witnesses as he would ultimately die intestate (without a will) meaning his estate would fall under the intestacy rules. Ultimately the estate may not pass according to the Testator’s wishes.
Lastly, most people appreciate privacy when writing their will. When witnessing a will in person, it is uncommon for the witnesses to read the Testator’s will, however as the witnesses will be in receipt of the will without the Testator present, it is quite likely that they will read the will. This eliminates any confidentiality aspect that is provided with an in person signature.
As lockdown restrictions are easing it is likely to be reasonable for you to have your will or codicil witnessed in person. If you are high-risk or vulnerable and prefer to use live video to sign your will, please take the necessary steps to ensure your will is witnessed appropriately. Please note that both witnesses must be over the age of eighteen, must not benefit from the will and must not be the spouse or civil partner of someone benefiting from the will. Feel free to call Kay Stewart or John Szepietowski at Audley Chaucer on 01372 303444 for a confidential discussion without obligation