I recently wrote a piece concerning the difficulties encountered in the signing and witnessing of Wills during a pandemic (Dealing with issues of signing and witnessing Wills in the age of Social Distancing). On 25 July 2020 the announced the introduction of a new Statutory Instrument which would allow Wills witnessed via video conferencing, using platforms such as Zoom, FaceTime etc to be valid.
The formalities set out in s9 of the Wills Act 1837 remain:
- It must be in writing;
- it must be signed by the testator, or by some other person in his presence and by his direction; and
- it must be witnessed by two independent people, present at the same time and in the presence of the .
It is the last two points that have caused anxiety over the last few months. How is it possible to be ‘present at the same time’ and ‘in the presence of’ whilst maintaining social distancing, particularly when the person in question is shielding or in self-isolation?
The new, temporary
, legislation is due to come into effect for England and Wales in September or October 2020 (depending on its passage through Parliament) and when confirmed it will be retrospective, applying to Wills and Codicils signed since 31 January 2020, the date of the first confirmed case of Covid-19 in the UK, except in circumstances where a Grant of Probate has already been issued or applied for. It will remain in place for two years initially, up to 31 January 2022, with an option to extend (or shorten) that if need be.
The advice in the guidance published by the Government is that where possible people should use a more ‘conventional’, in person, method of signing Wills but in circumstances where this simply is not possible video conferencing software can be used. Given that witnessing through a window or open door, or from an adjacent room would be sufficient for the will to be valid it seems there would have to be rather extreme circumstances to warrant the use of video conferencing. It has further been suggested that the attestation clause be altered accordingly to be clear that the Will was signed and witnessed remotely.
There are number of issues that remain. The major risks in Will drafting, which become all the more difficult to identify and protect against are issues of capacity, undue influence, duress, fraud and identity theft. How can we eliminate these without physical presence?
It has been suggested that when video conferencing is used to execute Wills the Testator (person making the Will) should show the whole of the room before proceeding, although this does still leave potential for those exerting undue influence or duress to be hiding just outside the door, beneath tables or behind the sofa.
Before proceeding with the signing the Testator should hold up the front page of the Will to the camera to confirm that is the document they are signing – a witnesses must know that it is a Will they are witnessing although they do not need to know the contents.
Additionally, in the circumstances where professionals are acting as witnesses and the Testator is not personally known to them, they should show their ID to the camera to confirm they are who they say they are.
When signing it is important, as it is with the existing legislation, that the witnesses see the pen to paper with a ‘clear line of sight’ and not just the Testator’s head so a wider view of the room is required. It is also recommended that the meeting be recorded to assist the Court should the need arise if there are any problems as to validity in the future. However, the witnessing must be in ‘real time’, the witness cannot sign as a result of having seen a recording of the Will being signed.
Once signed by the Testator, arrangements need to be made to transfer the Will to the witnesses. This could be via post or simply someone taking it to them as soon as possible, ideally within 24 hours. This leads to another risk factor, particularly in the case of an extremely unwell Testator, that the Will gets to the witnesses before the Testator dies. The Will is not valid until signed by all parties and they must all sign the same document; counterparts are not acceptable as valid Wills.
The two witnesses do not necessarily need to be together in order to witness the Will. The original signing meeting could be a three-way conference, as could the witnessing. The Government guidance outlines various scenarios such as the two witnesses together on a call with the Testator, one witness is the with the Testator and the second witness on a call or a three-way video call. So long as all parties partake in all calls, the meeting is recorded, an explanation of what is happening and there is a clear line of sight this would constitute a validly executed Will.
The Society for Trust and Estate (STEP) have issued a briefing note on this issue with a comprehensive suggested three step process to ensure as far as possible the validity of the Will.
As yet this procedure has not been tested in Court and it is likely that this legislation will lead to a rise in contentious probate and disputed will cases but this remains to be seen.