In the wake of Covid-19, more and more people are putting in place a written will, where the pandemic has served as a stark reminder of our own mortality and the importance of planning ahead. Furthermore, in a world where self-isolation and social distancing measures remain a normal part of every day life, having a last will and testament witnessed remotely is, at least for now, a legalised and accepted practice.
Under the Wills Act 1837, for a will to be valid it must be in writing and signed by the testator in the presence of two witnesses present at the same time. The witnesses are also required to sign the document in the testator’s presence. However, these rather inflexible requirements were preventing those who had tested positive for coronavirus, or were otherwise required to self-isolate, from executing a valid will.
As such, new legislation designed to combat these practical difficulties was rushed through Parliament by way of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952. This specifically amended the provisions under the 1837 Act relating to signing and attestation of wills, where the meaning of “presence” for the purposes of “being in the presence of two or more witnesses” or “in the presence of the testator” includes presence by means of videoconference or other visual transmission.
The amended rules therefore allow a testator’s signature, as well as the witnesses’ signatures, to be witnessed via a live video link. This means that if the testator is required to self-isolate, or has been admitted into hospital where it is neither practical nor possible to have anyone attend in person to witness them signing their will, they can instead do this with their two witnesses present over Skype, FaceTime, Zoom or other video conferencing software. Once the will has been signed by the testator it can then be posted to the witnesses, who sign it themselves in the presence of the testator, again over a live video link.
The use of video-witnessed wills has undoubtedly come as a welcome development for many Covid-affected people looking for peace of mind that their last wishes can be validly recorded. Still, at the time of writing, this is only intended to be a temporary measure, applying to wills made between 31 January 2020 and 31 January 2022.
The government has also advised that the use of video technology should only be used as a last resort. This is because the process of remote witnessing increases the possibility for fraud and abuse, where witnesses will simply be unable to tell if a third party is present, potentially coercing or forcing the testator to sign. The need to forward the signed will to the witnesses for their signatures also provides an opportunity for the will to be amended or substituted.
Admittedly, the previous system was by no means perfect, although the temporary new law may now see a spike in cases of undue influence or fraud following the deaths of those who have signed their will in this way. It certainly seems to be the right time for a more permanent solution to be put in place, one which provides flexibility if needed, while continuing to protect the elderly and vulnerable from those seeking to exploit any procedural loophole.
Legal disclaimer
The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.