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How to witness a will by video

Emily Hitch explores the amendment to the Wills Act 1837.

The Ministry of Justice (“MoJ”) have announced a huge (albeit, temporary) amendment to the Wills Act 1837, allowing video witnessed wills during the coronavirus pandemic to be deemed legal.

The current law states that a will must be signed “in the presence of” at least two people, causing difficulties for those shielding or isolating meaning people have been having wills witnessed through the window, and some, via video technology.

What has changed?

Provided the video is clear enough to see and hear exactly what is happening and the witnesses are at least two in number and are not named beneficiaries, any wills witnessed via video since 30 January 2020 will be deemed legal.

The new rules are set to be implemented in September 2020 and will be backdated to 30 January 2020. They will continue in force until 30 January 2022, or as long as deemed necessary.

Why is it needed?

Although the MoJ have confirmed that video witnessing must remain a last resort, the change mitigates the difficulty shielding and vulnerable clients have been faced with, allowing more people to create and execute a will during this time, with the assurance that their will is deemed legal.

What are the potential drawbacks?

Practitioners worry that wills witnessed by video could be open to abuse, that the change is not absolutely necessary and will inevitably cause a rise in inheritance disputes.

There are also questions surrounding the practicality of video witnessing. How does the will get from the testator to the witnesses as quickly as possible? If the will is being posted, this leaves room for potential problems such as the testator passing away before the will is witnessed. If somebody is simply handing the will to the witnesses they could have probably had the will physically witnessed through the window instead.

Guidance

Guidance suggests that the following steps are taken when witnessing a will via video:

  1. The attestation clause must be drafted to make it clear that the signing and witnessing of the will is being done remotely;
  2. The signing of the will should be recorded;
  3. The will maker should hold the front page of the will up to the camera and then turn to the signature page for the witnesses to see;
  4. The witnesses (ideally in the physical presence of each other) should ensure and confirm that they can see the signing and not just the testator’s head and shoulders;
  5. The witnesses must then confirm on video that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document;
  6. If the video maker is not known to the witnesses, the witnesses should ask for proof of id;
  7. The will should then be taken to the witnesses for them to sign, ideally within 24 hours;
  8. The witnessing of the will should be recorded;
  9. The witnesses should then hold the will to the camera for the maker to see; and
  10. The witnesses should and then sign the will, ideally in the physical presence of each other, and the video maker should see and confirm they can see the witnesses signing and not just their head and shoulders.

Practitioners must ensure the guidance is strictly followed when having any will witnessed via video technology to ensure minimising the risk of abuse and fraud.

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