Changes to the formalities for executing a Will

27 October, 2020

In a move to relax Will witnessing protocols during Coronavirus, the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (SI 2020/952) was laid before Parliament on 7 September 2020 to enable wills to be witnessed remotely. This came into force on 28 September 2020 and applies to Wills made on or after 31 January 2020 and on or before 31 January 2022.

 

The standard formalities for signing a Will included the requirement to do so ‘in the presence of two or more witnesses present at the same time’ and for each witness to then either attest and signs the Will or (if they sign without everyone present) acknowledge their signature in the presence of the testator. The new legislation widens the definition of ‘presence’ to include ‘presence by means of videoconference or other visual transmission’.

 

This will be a welcome change for many during the current crisis, particularly for those who are shielding or self-isolating from the virus as it may be difficult for them to follow the standard formalities without putting themselves at risk. That being said, it will invariably widen the scope of potential challenges against the validity of Wills which have been executed in this way. For example, whether a witness is considered to have truly witnessed a Will in these circumstances could be affected by the angle of the video conferencing camera, the quality of the footage, whether they can properly see the document that is being signed and the type of video conferencing software used (and whether it is considered to be happening in real-time and not by way of a recording). Furthermore, the time it takes between the testator signing the Will and the witnesses receiving it and countersigning it could also cause issues, particularly if the testator dies in the interim.

 

While the government has issued some guidance notes to help reduce the risk of these issues arising (https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing#new-legislation-on-making-wills), the use of video conferencing is generally considered a ‘last resort’ and, if someone preparing a Will is able to execute it in the conventional way, the guidance states that they should do so.

 

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