Update on remote signing and witnessing of wills
Following on from our recent article on remote signing and witnessing of wills, we want to offer an update now as a result of the new law being in place.
The technical bit
A change to the Wills Act 1837 has been brought about by Statutory Instrument. The change is made pursuant to s. 8 of the Electronic Communications Act 2000, which creates the power to modify other Acts so as to authorise the use of electronic communications for a wide variety of purposes, including anything that requires a witness (s.8(2)(c)).
The long-standing position has always been that two witnesses’ signatures must be made in the physical presence of the testator for the will to be valid. The new change to the legislation amends the definition of “presence” to include presence by means of videoconference or other visual transmission.
There is debate amongst practitioners and academics as to whether the old provisions already allowed for remote witnessing of wills, but the new legislation leaves us in no doubt.
The legislation is retrospective from 31st January 2020, which is the date of the first UK case of COVID19. This will give some peace to those who felt their only option was to make a will remotely.
The legislation is time-limited until 31st January 2022, after which, without further legislation, the requirement for physical presence will return to the position prior to COVID 19. I would say that the jury is out as to whether this will remain a permanent way to make wills going forward.
It is important to note the retrospective element of the legislation does not apply to the following situations:
- Where a Grant of Probate has already been issued in respect of the deceased person; and
- Where the application for a grant is already in the process of being “administered”.
What are the practicalities of remote witnessing of wills?
Making a remote will is not an easy option and there are many drawbacks.
Guidance has been issued by the Ministry of Justice as to how this should take place as follows:
Signing by the party making the will
- All parties need to be on a video link, so you and your witnesses will need to be confident with the technology required to do this. The person making the will ensures that their two witnesses can see them, each other and their actions;
- The signing will need to be recorded;
- The will-maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well;
- By law, the witnesses must see the will-maker (or someone signing at their direction, on their behalf) signing the will. Before signing, the will-maker should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders. This may make it difficult for the person making the will to be on their own as it could need the camera to be held at an angle to catch the image required to validate the will;
- If the witnesses do not know the person making the will they should ask for confirmation of the person’s identity – such as a passport or driving licence;
- The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link;
- The will document should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document. The longer this takes the greater potential for problems to arise; and
- A will is fully validated only when testators (or someone at their direction) and both witnesses have signed it, and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the will-maker dies before the full process has taken place the partly completed will is not legally effective.
Witnessing of wills
The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign. This will require a further recorded session.
- Both parties (the witness and the will-maker) must be able to see and understand what is happening;
- The witnesses should hold up the will to the will-maker to show them that they are signing it and should then sign it (again the will-maker should see them writing their names, not just see their heads and shoulders);
- Alternatively, the witness should hold up the signed will so that the will-maker can clearly see the signature and confirm to the will-maker that it is their signature. They may wish to reiterate their intention, for example saying: “This is my signature, intended to give effect to my intention to make this will”; and
- If the two witnesses are not physically present with each other when they sign then step four will need to take place twice, in both cases ensuring that the will-maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.
Key points to note
- This will take longer than making a normal will which may impact on the overall cost of a will, and runs a greater danger of someone dying before the completion of a will;
- Problems may arise in relation to internet connection especially where people live more remotely; and
- If the recording is not adequate to demonstrate the signing, the will may not be valid.
I would argue that if remote signing and witnessing of wills is to stay, then more work needs to be done to make this a practical and viable choice over the traditional way, and, in my opinion, the current procedure does not make it a viable option for clients.
- Where possible, make a will in the traditional way: discuss your circumstances with your solicitor to see what can be done to facilitate this. Solicitors have thought of many ways to get wills signed, including drive-through and looking through the window, amongst other ideas. This will save time and money.
- If you do have to make a will remotely, re-sign it in the normal way at the first opportunity you get as there are fewer risks with a traditionally signed will.
Should you have any questions regarding the making of a will please contact a member of our Private Client team on 0800 8840 640.