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25 November 2020

Witnessing of wills by video: a new way forward? 

The new rules about video witnessing of wills: a valuable relaxation or an invitation to litigation?

The government introduced new legislation at the end of September to permit wills to be witnessed by video conferencing, for an initial period between 31 January 2020 and 31 January 2022. The catalyst for the change was the rapid spread of COVID-19, which led to limitations being placed on face-to-face meetings. 

Many of you who have already made your will may recall your adviser being very specific about the formalities to validly execute it. These formalities are found in the Wills Act 1837 and require two witnesses to be in the presence of the testator when he or she signs their will, with the witnesses then signing the will in the presence of the testator.

What it means for a person to be ‘in the presence of’ another person has been debated in case law, but generally required a line of sight to be established between the parties, inferring the need for some physical presence. This is not as restrictive as being present in the same room, as separation by a window or an open doorway can satisfy the ‘line of sight’ requirement, but there has not been a case yet which tests whether this extends to using video conferencing.

While many found ways during lockdown to accommodate signing their will under the existing age-old process, it has not been possible for all, and so the changes may well appear to be a welcome addition: the headline message seems clear and simple. 

The government’s guidance is comprehensive and complex however, covering the type of video required, the steps each party should follow, how the ‘event’ should be documented, and the precautions one should make to resist possible future challenges. 

So although the new rules have been back-dated to January 2020 they may not help every individual who went ahead during lockdown and used video witnessing. The most obvious trap is for cases where the will was passed on to the witnesses to sign and they did this without the testator being present by video when they did so. 

In addition to the procedural intricacies, there are inherent difficulties in identifying fraud, forgery or undue influence in a virtual setting. For those of you looking to make a will now, our advice is likely to be to continue with the tried and tested method of signing your will in the physical presence of your witnesses where it is safe to do so, and to view the new method as an option of last resort.

For a more detailed guide on the changes, please see our article ‘A Welcome Update?’. This article was first published in Trusts and Estates Law & Tax Journal (October 2020).

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