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If There’s a Will, There’s a Way – Changes to the Execution of Wills During Covid-19

Feb 1st, 2021

Edward Allen, Senior Associate Solicitor


Despite being enacted in 1837, the Wills Act remains the main piece of legislation detailing requirements to validly execute Wills in England and Wales. Society has changed considerably since the legislation was introduced and the recent global pandemic, with associated social distancing requirement, has impacted on our ability to apply the legislation.


So what are the requirements?

 

The Wills Act 1837

The Wills Act 1837 states that in order to validly execute a Will the following formalities must be complied with :-

  • The Will must be in writing;
  • The Will must be signed by the person making it (the testator), or by a third party in the testator’s presence and by their direction;
  • The Will must be signed in the presence of at least two witnesses, who are present at the same time;
  • Each witness must sign the Will or acknowledge their signature in the presence of the testator.
     

Social distancing measures have created  barriers for people attempting to comply with these requirements, particularly when it comes to the witnessing of Wills in the physical presence of the testator.  We have advised clients about the application of a “line of sight” test when considering whether witnesses are in the “presence” of a testator.  This resulted, during the first lockdown with Wills being signed in gardens or on driveways whilst the partied socially distanced or, in the case of more vulnerable clients, sometimes signing Wills on the other side of a Window.  However, further restrictions regarding meeting in other people’s gardens has caused further problems for some. Recognising these barriers, the Wills Act has been temporarily amended through Statutory Instrument 2020/952. This change will apply to most Wills and codicils made between 31 January 2020 and 31 January 2022, with the potential for this date to be extended further if necessary.
 

What are the changes to the law?

The key change brought about by the amended legislation is that Wills and codicils can now be signed and witnessed virtually, through a video link, replacing the need for the testator and witnesses to be in the same room when signing the Will. Many of the formalities dictated by the Wills Act remain in place, albeit in a slightly more flexible manner. The signing must still be in the ‘presence’ of at least two witnesses, however ‘presence’ now includes both physical and virtual presence. Essentially, this requires that the video stream be live rather than pre-recorded and the witnesses must be able to clearly see the testator signing the document and vice versa.
 

Despite solving the issues that social distancing measures have caused in this area, there are obvious risks associated with signing Wills remotely. Ordinarily, solicitors meet with clients to ensure they have capacity to sign the Wills, to ensure that no undue influence is being placed on the testator to create the Will and to ensure no fraudulent acts are taking place.
 

Recognising these risks, various pieces of guidance have been published to ensure that remote witnessing mirrors standard practice as closely as possible. Most notably, it is advised that :-

  • To avoid the risk of fraud, a ‘wet’ signature is still required meaning electronic signatures remain invalid.
  • Ideally the Will signing should be recorded and the recording retained, to assist should there be any disputes regarding the validity of the Will in the future.
  • During the video, the testator should ensure that the witnesses can see them and each other. It is suggested that the testator holds up each page of the Will to the camera to show the other parties.
  • The testator should also ensure that the quality of sound is sufficient to hear exactly what is taking place.
  • The witnesses should also be ‘present’ at the same time, meaning a three-way video call is likely to be necessary.
  • The witnesses should also try to sign the Will within 24 hours of the testator doing so. Following the testator’s signature, the same document should be taken to the two witnesses to sign, following the same virtual process as before for each witness’s signature.
  • A clause should be inserted into the Will stating that the Will is being witnessed remotely. Alternatively, the testator could make a statement on camera giving their full name and confirming that they are having their Will witnessed remotely and it is of their own free will.
  • If possible, one of the witnesses should be the testator’s solicitor, to ensure guidance and formalities are complied with and ultimately safeguarding the position of the testator to a greater extent.


Although following such guidance does not completely eradicate the risks mentioned, on balance the change in legislation is a welcomed solution to some of the obstacles faced due to Covid-19 restrictions. Importantly, remote witnessing of Wills should still be treated as a last resort, to be used only if physical witnessing is not possible.

 

If you would like any advice related to Will-making during the Coronavirus, please contact a member of our Private Client team.

 

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