Anyone wanting to make, or update, a will while the Covid-19 restrictions are in place may have struggled to get the maker of the will (testator) and two witnesses in the same place, as required by the Wills Act 1837.
The Government has recognised this problem, and is introducing a temporary change to the law to permit video-witnessing of wills. Similar issues arise with agreements made as deeds where the witness must also be present, as explained by Andy Moseby. At the moment, there is unfortunately no indication that the new relaxation will apply to documents other than wills, so the difficulties of arranging for witnesses to be physically present will still apply to deeds.
The Wills Act requires that:
- a will (or a codicil updating it) is signed by the will-maker in the presence of 2 witnesses present at the same time; and
- each witness signs the will in the presence of the will-maker (but not necessarily in the presence of the other witness).
The witnesses and will-maker must have a clear line of sight of the others involved.
These requirements can be met despite social distancing rules, eg by witnessing through a window, or from a corridor or adjoining room with doors open, or at a distance in a garden. But for people in insolation, or shielding, these options may not be available.
On 25 July the Government announced that when Parliament returns in September it will introduce legislation to amend the Wills Act so as to permit a will to be witnessed by video-link. The witnessing must still be live – witnessing a recorded video of the will-maker signing is not effective. Once the will-maker has signed, the signed will must be witnessed by each of the witnesses – the Government advises that this should be done within 24 hours if possible, but recognises that it make take longer eg if the will has to be posted. The will is fully validated only when the will-maker and both witnesses have signed the same document, so if the will-maker dies before the second witness has signed, the will will not be legally effective. Each signing process – the will-maker’s signature in the presence of both witnesses, and then each witness’s signature in the-presence of the will-maker (and of the other witness if possible) – will need to be done by video-link. Electronic signature of wills is still not permitted, although this is being considered for the future as part of a more general law reform project. Physical presence is still preferable, and use of video technology should be a last resort.
The Government advises that each stage of the witnessing process should ideally be recorded and these recordings retained. Although the Government guidance does not mention this, if the video-witnessing is recorded, it will be important to comply with UK Data Protection Act requirements including explaining to those involved that the process is being recorded and why.
When introduced, this change will apply to wills made on or after 1 February 2020 (unless probate has already been granted or applied for). It is intended that the new rules will apply to wills made until 31 January 2022, but this period may be shortened or extended depending on the Covid-19 situation.
The Ministry of Justice has issued some helpful and practical guidance on what is required, and how this can be achieved.
The law (the Wills Act 1837) will be amended to state that whilst this legislation is in force, the ‘presence’ of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence.