On 25 July 2020, the Government clarified whether or not wills which are witnessed during lockdown, using new methods (to comply with social distancing rules), are valid. For example, wills witnessed via video conferencing facilities such as Zoom, FaceTime or Microsoft Teams.
What was the issue?
Under S. 9 of the Wills Act 1837, a will is usually only valid if it is witnessed by two people in the physical presence of the testator (the person making the will). S. 9 states;
”No will shall be valid unless –
(a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary. “
This created a significant problem for those who wanted to make or update their wills during lockdown, given the limitations of social distancing, self-isolation and also the fact that a beneficiary of will should not act as a witness to the testator’s signature. In many cases, this ruled out testators being able to use members of their own household as the witnesses to their will.
Temporary solutions therefore had to be found quickly, in order to ensure that those who wanted to make or update wills during lockdown were able to do so. Some testators used virtual meeting platforms to have their will witnessed, whilst others met outside and had their witnesses stand 2m away from them (and each other) when signing the will.
These new methods of witnessing wills were potentially problematic, because the above will witnessing rules are usually strictly applied, in order to protect vulnerable testators, prevent will fraud and ensure the independence of witnesses. The new methods of witnessing wills during lockdown therefore caused uncertainty about whether they complied with S.9 of the Wills Act 1837 and also whether any wills made in this way would be valid.
What has the Government said?
The Ministry of Justice has said that the following examples would lead to a properly executed will during the pandemic, provided that the testator and the witnesses each have a clear line of sight:
- Witnessing through a window or open door of a house or vehicle;
- Witnessing from a corridor or an adjacent room into a room with the door open; and
- Witnessing outdoors from a short distance for example in a garden or park.
The guidance can be found here and it also confirms that any wills which were witnessed via video link since 31 January 2020 (the date of the first registered Covid-19 case in the UK) can be valid provided that certain other conditions are also met.
Pre-recorded videos are not permissible, because the witnesses must see the will being signed in real time.
There is also no relaxation of the rules about testamentary capacity, undue influence and of knowledge and approval. These requirements still apply and the guidance recommends that the whole video signing and witnessing process should be recorded and the recording kept. This could assist a court in the event that the will is later challenged (which can still occur).
The guidance also provides various scenarios for circumstances in which wills being witnessed by video conferencing might be used. One example given is where the testator and both witnesses are all alone in separate locations and are connected by a three-way live action video conference link.
Is there a time limit?
The amended provisions for witnessing wills are exceptional, and they have been introduced in order to deal with an emergency situation. The new legislation is therefore only a temporary measure, which is currently due to expire on 31 January 2022.
Are there risks?
The Ministry of Justice has stated that; “The advice remains that where people can make wills in the conventional way they should continue to do so”.
Although video conferencing provides a vital resource for those who needed to make or update their will during lockdown, it is also important to remember that, even before the pandemic, a will could be declared invalid in England & Wales in certain circumstances e.g. if the testator lacked testamentary capacity.
There are concerns about the new methods of witnessing wills also prompting disputes e.g. recordings of a will being witnessed being lost or a testator being coerced ‘off camera’ into making a will. So, if a will can be signed in the normal way i.e. in the physical presence of two witnesses (whilst using appropriate social distancing measures) that may be less controversial.
There are also specific rules about the wording which must be used in a video will and therefore anyone who wishes to execute a will in this way should read the above Government advice and also consider obtaining specialist legal advice.
It should also be noted that the Government has not permitted electronic signatures to be used on wills, to reduce the risk of will fraud. It is also not possible to sign a “counterpart” will under the temporary legislation. This means that only one copy of the will should be signed by the witnesses and the testator.
As with current foreign holiday travel advice, the Government guidance may change as the Covid-19 situation develops further and therefore it is very important for anyone who is considering making or updating a will during lockdown to also keep up to date with any developments.