Making a Will by video link

The Government has recently announced plans to allow for the witnessing of Wills and Codicils by video conferencing. This is a welcome step which will enable many clients who are self-isolating or shielding to prepare a valid and legally binding Will in the current circumstances.

The current law

The current law on the validity of Wills dates back to the Wills Act 1837. The prescribed formalities for a valid Will are as follows:

• The Will should be in writing;
• It should be signed by the testator, or by some other person in his presence and by his direction;
• It must appear that the testator intended by his signature to give effect to the Will;
• The testator’s signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• Each witness must either attest and sign the Will or acknowledge his signature, in the presence of the testator (but not necessarily in the presence of any other witness).

Over time case law on this matter has evolved to allow for a Will to be witnessed through a window or open door of a house or a vehicle, as long as there was a clear line of sight.

However, despite the rapid development of technology, there has previously not been any provision for the line of sight to be virtual.

How to execute your Will remotely 

The new legislation, the Electronic Communications (Amendment) (Coronavirus) Order 2020, will temporarily allow for the presence to be either physical or virtual.

The Government guidance on remote execution of wills does not specify the video technology or device to be used. However, the original requirement that there must be a “clear line of sight” between the testator and the witnesses remains. The process must be live and, whenever possible, it should be recorded.

The Government has also advised amending  the usual wording of the attestation clause to clarify the new circumstances of signing the Will.

The testator should first hold the front page of the Will to the camera and subsequently turn to the last page where they are signing. The testator should then arrange for the original signed Will to be transferred to the witnesses for their signatures. The guidance is that this should happen within 24 hours, although that timeframe may be difficult to achieve, especially when using the post.

Importantly, on this occasion the new law will have a retrospective effect. The legislation is expected to be backdated to the 31^st of January 2020, which was the date of the first reported case of COVID-19 in the UK. The new law will be kept under review;  the initial assumption is that it will remain in place for two years until the 31^st of January 2022.

Other requirements for a valid Will 

It is important to note that the new legislation will only apply to the testator, the person signing the Will, and the witnesses witnessing the Will. This means that there is no provision for the use of technology in relation to other requirements of a valid Will. For example, there is no provision for the testator to instruct someone remotely to sign on their behalf. This instruction can only be given in person.

Additionally, no electronic signatures or counterpart Wills are allowed. This means that the same original Will  needs to be signed by the testator and then transferred to the witnesses for their signatures.

Potential difficulties with remote witnessing

There are some valid concerns about the potential difficulties associated with remote witnessing of Wills. For instance, whilst we may have a clear line of sight of the testator, we do not have a full sight of the room through a video link. Hypothetically, there may be someone else in the room, out of the view of the camera, exerting undue influence on the testator. As a result, the witnesses will need to remain particularly vigilant.

There are also practical concerns about transferring the Will between the testator and the witnesses, as it may get lost, intercepted or delayed.

However, given the need for many vulnerable people to shield, it is a welcome solution to ensure that they can make valid wills in the current circumstances.

If you are interested in executing your Will remotely, we strongly advise you to seek a solicitor’s advice to ensure that your Will is fully compliant with the new regulations. Please contact Osbornes Law on 020 7485 8811 and ask to speak to a member of the Private Client team or complete an online enquiry form.