The Coronavirus pandemic has made once simple tasks like the witnessing of wills much more difficult.
The Government reports that the numbers of people wishing to make wills has increased during this period, but for people shielding or self-isolating in particular, having it witnessed in the presence of two people can be very challenging.
Here, Katie Lofthouse looks at what is being done to introduce ‘distanced witnessing,’ how technology is playing a key role, and the potential for disputes.
Why must a will be witnessed?
Under the law, in order for a will to be valid, along with it having to be in writing and signed by the person making the will (known as a testator), the signature must be made in the presence or acknowledged in the presence of two or more witnesses.
These witnesses must either attest and sign the will themselves or acknowledge their signature in the presence of the testator.
The pandemic has made this very difficult, as often those witnessing a will are not members of the same household. When the testator is shielding or self-isolating, it can be impossible to meet and obtain such validation.
What is changing?
The legislation on how wills are made is changing to reflect the difficulties many people are facing. In order to ensure those who are unable to meet in person with other people, the meaning of ‘presence’ under section 9 of the Wills Act 1837 is being amended to include ‘virtual presence’ via a videolink.
The new rules are only temporary – they will apply retrospectively to any wills made after January 31 of this year and will continue until January 31, 2022 or until deemed necessary with an option for extension.
In order for a video witnessing to be valid the following must apply:
- Both witnesses must be able to see the Testator sign the will or see him acknowledge his signature on the will whilst showing it to the camera at the same time
- When each witness signs the will the testator must be able to see them sign the will or acknowledge their signature whilst showing it on video
- The video link must be live and cannot be recorded
The government have advised that the intention is for witnessing via video link to be a last resort – witnessing of a will should be done in the conventional way where safe and possible to do so. Therefore, most professionals do not expect there to be many circumstances in which these new virtual presence rules will be used.
When witnessing a will the testator’s signature simply needs to be within a clear line of sight. This means it is possible to witness a will even under the social distancing guidelines. Scenarios included witnessing through a window or open door of a house of vehicle; from a corridor or adjacent room into another room; and witnessing outdoors from a short distance (for example in a garden).
These methods will continue where at all possible.
What are the potential pitfalls of the virtual system?
Currently there is no set guidance on the practicalities of carrying out a virtual will signing so there could potentially be disputes around whether a will was indeed witnessed properly.
By its nature, the technology could be open to abuse – it would not be possible to see anybody who may be offscreen and perhaps influencing the testator.
Anything that could give someone the opportunity to raise concerns about the validity of a will (a video connection dropping out mid-signing is a perfect example) means there could be issues with this system in reality.
Issues will also arise when the testator passes away after signing the will but before it reaches the witnesses to sign after they have witnessed the testators signature.
We will not know the true impact of the change in legislation until it is in place and has become widely used. Anyone with concerns over making a will at this time should seek the proper legal advice.
For further advice on this or other contentious probate matters, call Katie Lofthouse on 01200 408300 or email her at firstname.lastname@example.org