In recognising the challenges faced by coronavirus, the Government have now deemed it legal for Wills to be witnessed in ‘virtual presence’ by video-link, as alternative to physical presence. A statutory instrument known as “The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020’ (2020 No 952) comes into force on the 28th September 2020. The measure will be backdated to the 31st January 2020, therefore, any Will witnessed by video technology from that date onwards will be legally accepted.
The Wills Act 1837 stipulates that to make a Will valid, the signature must be in writing and the Will must be signed by the testator in the presence of two independent witnesses. It has always been the case that ‘presence’ requires a ‘clear line of sight’ of the signing and this will continue to apply to video witnessing. The Government have stated that it does not matter as to the type of videoconferencing, as long as the quality of the sound and video is sufficient for everybody to see and hear what is happening. The witnesses should acknowledge that they can see, hear, and understand their role in witnessing the signature. However, Pre-recorded videos are not permissible.
A bespoke attestation clause should be included in the Will, stating that it is to be witnessed virtually. E-signing are not be permitted. Whilst the government have stated that video-witnessed Wills should remain a last resort, many view this as a shrewd change to the law of Wills, as it does advance the cause for a general review of archaic Wills legislation.
This is the situation as at September 2020. The Legal amendment will be in place until 31 January 2022, however, the Ministry of Justice has stated that this period can be shortened or extended if necessary. Audley Chaucer Solicitors are experienced in all aspects of wills and probate and can advise on tax efficient estate planning. In the first instance, please call John Szepietowski for a discussion without obligation.