A lot has changed in the last 183 years. In 1837 the European map was dominated by the Austrian and Ottoman empires, the USA admitted its 26th State, and the western world still worked on 2 different calendars (Gregorian and Julian). Since then changes and advances have taken place in almost every aspect of life, but not in the way in which wills are signed and witnessed!
Thankfully, at last the Ministry of Justice has announced changes to the 183-year-old rule on the witnessing of wills by allowing ‘Video-Witnessing’. Our Wills and Probate Solicitor, Emma Blakesley, looks at how the legislation will be amended to assist those who are still self-isolating.
Section 9 of the Wills Act 1837 sets out the following requirements for making and witnessing a will,
“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)…..”
The person making the will must have testamentary capacity (i.e. they must fully understand what they are doing, be able to express their intentions and not be unduly influenced by anyone). Also, anyone who will benefit under the will (or their spouses/civil partners), must not witness the will, as this would void any gift given to them in the will.
Under existing law, 2 witnesses must have a ‘clear line of sight’ of the will-maker signing the will and vice versa. The self-isolation and social distancing rules bought on by Covid-19 made this difficult in many cases, and we were required to think of innovative ways to ensure that wills were executed correctly. For example:
- Witnessing outdoors and in gardens,
- Witnessing in separate rooms with the door open,
- Witnessing through a window of a house or a vehicle
The new law
All of the legislation set out above still applies but the good news is that video technology can now be used in the witnessing process.
Witnessing pre-recorded videos will not be allowed, just as witnessing a pre-signed will is not allowed. The witnesses must still see the will being signed in real time and if possible, the process should be recorded and retained.
The person signing the will should ensure that the video view means that witnesses can see them actually signing their signature on the will.
Once the will has been signed and the witnesses have seen the signature process on video then the will should be collected or taken to the two witnesses for them to sign, preferably within 24 hours. Ideally, the witnesses should be physically present with each other when they sign the will, but if this is not possible, they must be present at the same time via video-link. Again, this process should be recorded if possible.
It is also important to note that this method should only be used in an extemis, when conventional witnessing is very difficult, and extreme caution is required when taking this course of action.
These new rules apply to wills made since 31 January 2020 (the date of the first registered Covid-19 case in England & Wales) and will remain in force until 31 January 2022.
For the time being the Government has decided to not allow electronic signatures as part of this temporary legalisation.
For more advice on this or other ways to sign a will, please contact our Wills and Probate Department on 01245 221699.
