Wills witnessed via video to be made legal

The Ministry of Justice has announced that legislation will be introduced from September regarding video witnessing of Wills. These changes will have a retrospective effect and be backdated for any Wills made on or after 31 January 2020. The Government will legalise the virtual witnessing of Wills by video technology, allowing an individual's final wishes to be formally recorded during the corona-virus pandemic.

This proposed new legislation will help people who are unwell and unable to share physical spaces with people outside of their immediate family or support network (who are most likely to be the beneficiaries of their Will, and therefore precluded from acting as a witness to their Will).

Platforms such as Zoom have seen a huge rise in popularity since the pandemic began making this process a lot more accessible. Wills which have been witnessed via a video-based platform will be valid as long as the quality and sound of the video is enough to see and hear what is happening at the time.

What are the new rules?

• The new rules will apply to all Wills made after 31 January 2020 until 31 January 2022, although this period may be shortened or extended.
• Witnessing must take place in real time.
• The Testator and witnesses must have clear line of sight of each other signing, as is the case currently.
• The Will is not valid until both the Testator and witnesses have signed the same document, so it may be possible that at least two video calls are needed, e.g. one call for the witnesses to see the Testator sign and the other for the Testator to see the witnesses sign.
• The new rules will not apply where a Grant has been issued or where a Grant application is in progress.

The full guidance can be accessed here.

What are the risks?

The government has stated that the use of video technology should remain a last resort and we should continue to arrange physical witnessing of Wills where it is safe to do so. There are likely to be various reasons for this.

The new process could be abused in various ways:

• Fraud - the Will could be tampered with following signature by the Testator and/or it may be difficult to verify someone's identity. 
• Undue influence – it is difficult to be absolutely sure that a third party is not in the same room as the Testator when he is signing his Will.    The influencer could be in the same room as the Testator, or in earshot, without the knowledge of the Will-drafter or witnesses. 
• Capacity – it could be more difficult to assess an elderly or vulnerable person's capacity or knowledge and approval of their Will via video-link. 

There is also a risk that the Testator may die before the witnesses have signed the Will if he/she signs the Will (observed by the witnesses over video-link) and then it has to be delivered or sent to the witnesses for them to witness. If this does happen there is no valid Will. If a professional is involved in the process and unduly delays the witnesses signing the Will, it would leave them exposed to a professional negligence claim if the Testator dies before the Will can be completed.

The guidance acknowledges this risk and suggests that the witnesses should sign the Will within 24 hours where possible and the two-stage process should be recorded.  Example wording is provided for the Testator to use at each stage.

In conclusion:

In line with the Government's advice, it would be better to continue on the current basis and sign and witness the Will in a socially distant, but physical way, if possible. It will however be a useful mechanism in exceptional circumstances.