Remote witnessing of wills
With the emergence of Covid-19, and the nationwide lockdown that ensued, it led the Government to pass emergency legislation permitting the witnessing of wills to be done remotely. That legislation is The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020. However, it has led many to ask when may this be done, and how is it done?
The landscape prior to this year was that for a will to be declared valid, and compliant with the formalities of the Wills Act 1837, the testator’s signature must be witnessed by two independent persons. The effect of this longstanding law was that all three individuals (the testator and the two witnesses) had to be in the same place at the same time, with a clear physical line of sight required.
It is an emergency legislation, and so will not apply to the majority of wills. In fact, it applies only to scenarios where the testator is particularly vulnerable to contracting Covid-19 through the social interaction with others.
If you have a situation where a physical attendance is not possible, you may then consider how does one ensure that a remotely-witnessed will can still be compliant with the law.
First, the entire process (executing, signing and witnessing the will) should be video-recorded from start to finish with clear audio, and the recording retained (preferably by the solicitor involved).
Secondly, there must be a clear line of sight between the testator’s signature and the on-looking eyes of their attesting witnesses in real time.
Thirdly, the witnesses will need to confirm that they have seen the testator sign their will. They must both be present at the same time by video-link.
Fourthly, the physical will document then needs to be transported to the two witnesses, as soon as possible. The witnesses must then verify that the will is the same one that they saw being signed by the testator on video-link. The witnesses must then sign and print their name and details by way of video-link, with the testator present.
Finally, the final executed and witnessed will should be stored safely, preferably with the office of the solicitors firm that drafted it. A full note of the will-making procedure should be kept with the will, along with the video/audio-recording.
Need further help?
The law has been backdated to the beginning of the year, and will remain in effect until 31 January 2022. It is only a small window of time that this statutory instrument applies to. However, there may be certain circumstances where an urgent will is needed.
We at Smith Partnership are not advocating the remote execution of wills, but we are here to help in those circumstances where needs must.