How to have your will witnessed remotely by video

Katie de Swarte
zoom call

Table of Contents

Our specialist Wills solicitors can help clients with their Will requirements during this health crisis. Giving your solicitor ‘remote’ instructions for a Will during a pandemic is not usually difficult, but what then? It is virtually impossible for individuals who are shielding, or self-isolating because they have been exposed to covid-19 or suffering at home or in hospital with covid-19, to have other people in the same room to witness their Will (or Codicil).

Then there are the strict social distancing requirements and lockdown rules which prevent even the healthiest of people from mixing in each other’s homes. Clients unable or unwilling, for health and safety concerns, to visit offices have had a profound impact on how solicitors can help their Wills clients.

The Wills Act requirements

Witnessing Wills is a key area that had to adapt to covid-19. But a formal amendment to the law was required before any flexibility was allowed. The crux of the problem is: your Will is invalid if not signed and executed in accordance with strict legal requirements.

This all dates back to the Wills Act 1837 which states that Wills must be signed by the testator in the presence of two witnesses who must also sign the Will in each other’s presence. These rules have stood the test of time for a reason: they significantly reduce the risk of fraud and undue influence.

Remote witnessing

The amendment means a Will is legally valid if witnessed virtually via ‘video conferencing or other visual transmission’, for example, using Skype, Zoom or Microsoft Teams (section 8 of the Electronic Communications Act 2000). Note that this only applies to England and Wales. Importantly, this was also backdated so that Wills remotely witnessed via video since 31 January 2020 may be valid.

However, if the Will can be executed in accordance with traditional requirements, it must be. In other words, the temporary amendment governing remote Will witnessing should only be followed if the Will cannot be executed in person.

Under the rule change, ‘presence’ may now include virtual presence via video link. Helpfully, the Ministry of Justice also issued detailed guidance on how remote Wills should be performed in practice. If this guidance is not followed, there is a risk the Will could be legally invalid.

The process

To ensure your Will is legally valid via remote video witnessing, we strongly advise you to follow these 8 key steps. Doing so will mitigate the risk of a contested wills dispute after your death.

1. The video link – Your video platform of choice is not important but whatever you opt for, it must ensure compliance with the rules.

2. Record it all – It is strongly advised you record the video procedure to protect yourself in the event of any future claim. However, it must be recorded contemporaneously – a pre-recorded video of you signing the Will, then subsequently witnessed later on, will not be valid.

3. Clear visibility – Check you can see the witnesses writing their signature on your Will (not just their head and shoulders) – even if they are on video links in separate locations.

4. Hold the page – Display the front page of your Will to the camera so that your witnesses can see it, then do the same with the signature page.

5. Proving identity – If you don’t know the witnesses, it’s advisable to show them your passport or driving licence.

6. The witnesses’ role – Ask them to confirm they can hear what’s happening, they understand the role they are undertaking in witnessing your Will – and that they can see you as you sign the Will. The will should also be dated on the date you sign it.

7. Send the Will to the witnesses – Do this as soon as is practical, ideally within a day, to avoid the potential for problems – particularly if the Will-maker is elderly or very sick. Remember, the Will is not yet legally valid. If your witnesses cannot be in the same place when they witness your Will, it will need to be sent onto the second witness.

8. Witnesses sign the Will – Recording this stage is just as important. As before, the parties must be able to see and understand what’s happening and the witnesses should hold up the Will to the camera. They can then either sign it in your full view – or sign it and hold up their signature and confirm it is theirs.

If the above stage needs to be repeated for each witness, the other witness must have a video link to ensure they can see and hear the process.

The attestation clause in your Will should ideally reflect the fact that video witnessing is being utilised to give it legal effect.

Can I sign my Will electronically?

In short, no. The MoJ has made it clear that a physical signature is still required due to the risk of fraud or undue influence.

Similarly, the use of counterparts (ie two identical copies of the Will) is not allowed in video witnessing. The one Will document must be signed by all parties.

Is recording these stages enough?

Recording the proper video witnessing of your Will is probably the strongest evidence you can have that your Will is legally valid.

That said, it is always worth keeping a contemporaneous written record of what happened and who was involved.

Mitigating the risks for vulnerable clients

Some people are particularly at risk of being manipulated by family members to make a Will which is not in their best interests. The amended law, in combination with the detailed official guidance, goes a long way to mitigating the risks to the vulnerable.

However, it is not possible to rule out situations where for instance, a third party is hidden from camera view and coercing the individual or manipulating the video to make it appear the rules have been complied with or tampering with the Will document itself.

If you have any concerns that you or a loved one are being pressurised to make a Will you’re not happy about, contact us urgently for advice. Our contesting a will solicitors team can advise on will disputes and what facts need to be present in order to bring a claim.

How long will video witnessing last?

The formal amendment allowing video witnessing is intended to be temporary but for as long as it is required. The government has said that it may last until 31 January 2022, but it really depends on what course the pandemic takes.

When the rules change, we will report it here.

To speak to a member of our wills team please fill in an online form.

Share this article

Contact

Contact us today

For a free initial conversation call 020 7485 8811

Email us Send us an email and we’ll get back to you






    Related InsightsVIEW ALL

    1. Businessman and Male lawyer or judge consult having team meeting with client, Law and Legal services concept
      19.7.2022

      Beware of appointing your children as executors

      Where tensions exist between family members, making your children the executors of your will can cause huge problems with probate,...

      Read more
    2. 1.1.2022

      Married with children from a previous relationship – how...

      There are several ways of doing this. If there are sufficient assets apart from the family home, it may be...

      Read more
    3. 25.9.2020

      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...

      Read more
    4. 10.6.2020

      Leaving money to charity in your will

      Why leave money to charity in your Will? Leaving money to charity in your will is a significant source of...

      Read more
    5. 26.3.2020

      Property up to £1m can be inheritance tax...

      Changes to inheritance tax allowances mean married couples can leave property worth £1 million tax-free from 6 April. Modest houses in parts...

      Read more
    6. hampstead office
      19.12.2019

      Hampstead solicitor becomes notary public

      Hampstead solicitor Elspeth Neilson of Osbornes Law has qualified as a notary public (a notary), meaning she can now certify...

      Read more
    7. property in spain
      22.10.2019

      Property abroad? Beware of forced heirship rules

      Whether it’s a holiday home, an investment property or a place you want to retire to, if you own...

      Read more
    8. unwanted call
      9.8.2019

      How to Protect Yourself From Will Scams

      Much has been written about protecting older or vulnerable people from online scams – according to Age UK, an older person...

      Read more
    9. house in regents park london
      31.7.2019

      Residence Nil Rate Band

      What is the Residence Nil Rate Band? The Residence Nil Rate Band is an additional nil rate band. It can...

      Read more
    10. smartphone
      26.7.2019

      What happens to your digital assets on death?

      This question has become increasingly prominent with the advancement of technology and the increase in social media platforms. Digital assets...

      Read more
    11. international flags on wall
      3.7.2019

      Assets abroad? Why you may need more than...

      As more of us become internationally mobile, it’s increasingly common to own assets abroad. Yet lawyers say many people...

      Read more
    12. a couple doing DIY
      31.5.2019

      The Problem with DIY Wills

      The Law Gazette has recently reported that ‘DIY Wills’ are being blamed for the rise in probate disputes, and this...

      Read more
    13. 25.3.2019

      Cross Border Issues – Wills and Succession

      An increasing number of individuals have connections with more than one jurisdiction. Conflicting rules can significantly affect their estate planning...

      Read more
    14. person receiving bad news
      25.3.2019

      Intestacy Rules

      What Happens When Someone Dies Without a Will? It is estimated that between half and two-thirds of the adult population...

      Read more
    15. two ladies talking
      13.11.2017

      Mutual Wills

      The High Court’s decision in the recent case of Legg and Burton v Burton [2017] has highlighted the issues surrounding...

      Read more

    VIEW ALL