Since lockdown began, we have seen a substantial increase in the demand for urgent Wills. Government imposed social distancing requirements have created various challenges in complying with formalities, particularly the signing and witnessing Wills. Signing Wills in the gardens, on car bonnets and through windows have become the norm. In light of the video conferencing technology now available to us, pressure has been placed upon the government for a review of the signing and witness process.
The law on making Wills is contained in legislation dating back to 1837. It provides for, amongst other things:
1. The Will to be signed by the Will-maker;
2. The Will-maker’s signature to be made or acknowledged in the presence of two or more witnesses present at the same time; and
3. Each witness to either sign or acknowledge their signature in the presence of the Will-maker.
A signing whilst on video conference did not place the witnesses in the Will-makers “presence” and it, therefore, fell short of the necessary formalities to create a valid Will. A change to the legislation will now allow witnessing by video conference and it will apply to most Wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales. This is a temporary change though. It will apply until 31 January 2022, however, this period can be extended or shortened if necessary.
The witnesses must see the Will-maker sign in real-time. A three-way live video conference would cover this. The two witnesses must clearly see the Will-maker sign what they know to be the Will. They will need to ensure the camera is positioned so the witnesses can see the Testator actually writing their signature on the Will. Before signing, the Will-maker should hold the Will to the camera and verbally confirming that they wish to make a Will, they are doing it of their own free will and they are now going to proceed with signing it before the two other callers who are witnessing execution remotely.
Once the Will has been signed by the Will-maker, it will need to be passed to the witnesses for them to sign. They cannot sign a second copy of the Will, known as a counterpart, they must sign the same document the Will-maker signed. The Testator must see the witnesses sign and, as such, a further video conference will need to be set up. This time lag could be critical. The Will is not valid until the witnesses have both signed and if the Testator dies before this, the document is invalid. Electronic signatures are not authorised and so the time delay cannot be remedied by this.
Although the change in legislation has retrospective effect, it is doubtful that those signed by video conference before now will have followed the requirements fully.
Whilst it is pleasing to see things begin to change with the times, the process is cumbersome and risky. I will not be alone in predicting a flurry of inheritance disputes as a consequence of this change in legislation. Loved ones missing out on inheritance because the Will-maker dies before the witnesses sign or because the cumbersome process not being carefully followed; estates being wrongly administered under invalid Wills,and the vulnerable being more susceptible to making a Will by coercion by someone who can simply sit off-screen.
Given the Will-maker must either post the Will to the witnesses or have someone collect it from their home, there will no doubt be alternatives to this process which are far simpler and safer. Whilst the lockdown created challenges in Will making, they were not insurmountable. Our Private Client team have adapted to ensure swift, safe and valid execution of our clients Wills.