Covid 19 – Legal update on the witnessing of Wills

We are all facing challenging times, adapting to a new normal during the coronavirus pandemic. The law on Wills is no exception and witnessing them has become problematic due to social distancing restrictions.

For a Will to be valid, it must be correctly signed and witnessed in line with Section 9 of the Wills Act 1837. The person making the Will (the Testator) must sign the document in the presence of two witnesses. The witnesses must also sign in front of the Testator. It is recommended that this take place in one transaction with all three being in the same room at the same time. It is vital that the Testator signs the Will in clear line of sight of the witnesses. In the past there have been cases where Wills have been signed through windows and found to be valid but normally all are present in the same room.

Usually, when Meaby & Co draft Wills for clients, the Testator will come to our office and sign their Will in front of two members of staff and this is still encouraged to ensure that the Will is properly approved, correctly signed and dated.

With recent social distancing measures this process became more difficult when we were in lockdown and clients could not come into the office. We offered clients various methods to get their Wills signed such as asking neighbours to witness over the garden fence, ensuring both parties has a clear line of sight to each other.  This was not always possible for those who were vulnerable and had to shield at home. It was difficult to service those clients during lockdown.

In circumstances where a testator could not sign the Will in the presence or clear line of sight of two witnesses, people began to turn to using video witnessing. There was uncertainty about whether such Wills would be valid under the Wills Act.   The Government has now taken action to temporarily amend the law to enable people to sign their Wills using technology.

The Government announced in July that they intend to introduce provisions for witnessing Wills virtually. This reform made via statutory instrument which came into effect yesterday amends S9 of the Wills Act 1837 and will be backdated to the 31st January 2020 and will continue until 31 January 2022 or for as long as necessary. The law will also apply to the witnessing of Codicils. To avoid any future legal issues surrounding the Testator’s Will, video witnessing should only take place where following the normal procedure of attending the office to sign your Will is not possible.

Points to note

  • The new provisions allow for the use of any video technology such as Zoom, Facetime or Skype.
  • The Testator and the two witnesses can now be on a three-way call where they must use cameras.
  • The Testator must hold the Will up to the camera and show the witnesses the front page and the page they will sign to confirm that it is a Will that is being signed. The Testator then signs the Will in sight of the camera so that the witnesses can see the signature being written. If the witnesses do not know the person who is making the Will, they should ask to see their ID.
  • The Will is then given to the witnesses for them to sign. They must do so in front of the Testator, so two or three video calls will be necessary. They should again show the Will to the camera and they must sign in view of the camera.
  • The witnesses must sign the Will as soon as possible after the Testator as any delays could lead to questioning the validity of the Will. Also, if the gap between the Testator and the witnesses’ signing is too long, there is a risk that the Testator could pass away before the Will has been finalised.
  • The Will is not valid until all three have signed.
  • It would be prudent to amend the attestation clause of the Will to state that the Will has been witnessed virtually. It is also suggested, if possible, that the video calls are recorded and saved in case the witnessing of the Will is called into question later.
  • The government has decided not to allow electronic signatures on Wills due to a risk of undue influence or fraud. They will also not allow for counterpart documents where many copies are signed to make up one complete document. This is because of the risk that different copies of the Will could be altered.

 

Example Scenario

Gemma has a Will drawn up by Meaby & Co that she now wishes to sign. However, because of her poor health, Gemma is isolating. Gemma asks if Meaby & Co can provide her with two witnesses. Gemma, Meaby & Co witness 1 (Fred) and Meaby & Co Witness 2 (Bob), who are both working in the office, schedule a video call to witness Gemma’s Will. Gemma joins the call from her house and Fred and Bob join from the office together. Gemma confirms that she is signing her Will, holds it up to show the camera and shows them the signing page. Next, Gemma signs the Will in clear view of Fred and Bob so they can see her write her signature. Gemma then posts the Will to the Meaby & Co office. Finally, all three of them have a further video call where Fred & Bob show the Will to the camera and both sign so that Gemma can see.

Alternatively, if Fred and Bob were working from their own homes, they would need to do a three-way video call. The only difference would be that the Will would have to be sent to Fred, signed on a second video call, then sent to Bob to be signed on a third video call.

Luckily we are now able to see clients in the office to sign Wills again but if we go into a second lockdown or for clients who would prefer to remain shielding then we can now offer another option. Despite virtual witnessing now being possible in certain circumstances, it is still recommended that, wherever possible, Wills are witnessed in person in the usual way.

If you are concerned about having your Will drafted and witnessed during Covid-19, we are here to help. Please contact Esther Janalli-Brown on 01306 884432 or email ejbrown@meaby.co.uk for more information.