In a controversial announcement made by the Government on 25 July 2020, wills witnessed via video link are to be legalised temporarily. As expected, there are conditions imposed on this, but some say they do not go far enough and risk a rise in probate disputes.
What is changing?
The Ministry of Justice announced on Saturday that a law will be passed in September to allow any wills made via video link since 31 January 2020 to be valid. Under current legislation, wills must be witnessed in the physical presence of at least two witnesses. This has caused some difficulty to those who are shielding or self-isolating as a result of the current Covid-19 pandemic.
The Government has confirmed that:
The changes will apply to England and Wales only.
The changes will apply to wills and codicils.
There remains the need for there to be at least two witnesses.
The witnesses no longer need to be in the physical presence of the testator (the person writing the will) but instead can witness the signature via video link.
The video link must be live (in real-time) and not pre-recorded.
The quality of sound and video must be sufficient to see and hear what is happening.
Electronic signatures will not be permitted.
All other will drafting and signing requirements are unaltered.
As the legislation has not yet been passed, the full extent of the requirements is not yet known. However, we do know that the Government has said that witnessing a will via video link must be a last resort.
Despite the allowances, the Government has said that if a grant of probate has already been obtained or the application for a grant is in the process of being administered, the new rules will not apply.
Is this change in law permanent?
No. Currently, the new requirements will be in place until 31 January 2022 but can be extended or shortened as necessary due to the Covid-19 outbreak. Once it is deemed safe to do so, the original requirements will return. At this time, witnesses will be required to be in the physical presence of the testator once more.
Limiting the risks of a dispute
Even though there are clear benefits in allowing wills to be witnessed in such a way, there are many who are concerned that the formalities will not be properly adhered too, leaving some estates at risk of a dispute. There are also concerns that a testator may experience pressure from a third party seeking to force them to leave their estate in a certain way.
The Government has sought to address these concerns in their guidance on making wills using video-conferencing. Within this guide, the Government has set out a number of suggestions and requirements to limit the risks to the parties involved, such as:
All parties to check they can see and hear each other.
The testator shows the witnesses ID if they are not known to them personally.
The testator shows the witnesses the front page of the will and the signature page, by holding them up to the camera.
The testator checks that the witnesses can see them sign the document, rather than just see their head and shoulders.
The witnesses should confirm that they can see and that they are aware they are witnessing a person sign their will.
The usual requirements on witnesses apply.
The will must be delivered to each of the witnesses in turn (unless they are together).
A further video conference must take place between all of the parties for each of the witnesses’ signatures.
All parties must sign the same document.
The will is not valid until the testator and at least two witnesses have signed the will.
The Government suggests that where possible the will signing, and preferably the whole conversation, is recorded to enable it to be referred to at a later date should a dispute arise. It is also recommended that mention is made, perhaps even in the will itself, that the will signing has been recorded.
Also, given the unusual method of will signing, it is recommended that the will (particularly the attestation clause) is amended to reflect the fact that it is being signed remotely.
Although the Government has allowed wills to be signed remotely and has produced guidance to reduce errors, many risks still remain. It is important that a will is prepared accurately and covers all aspects of a person’s estate. Errors within wills can lead to an estate passing to the wrong people or in a way the testator never wished or imagined. It can also lead to disputes, which can be very costly to those involved.