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27 August 2020
The government has announced that it will introduce a temporary change in the law to allow wills to be witnessed using video technology during the COVID-19 pandemic. The change is set to come into force in September 2020, but will apply retrospectively to wills executed from 31 January 2020.
The announcement has been welcomed as a necessary response to the pandemic. Some wills are being made with a particular sense of urgency and social distancing measures have meant that the requirement for witnesses to be physically present can be an obstacle. However, while the new measures will be useful in certain circumstances, they should be seen as a last resort. Witnesses should be physically present at execution whenever it is possible and safe to do so. If video technology is used, a cautious approach and adherence to certain rules will be important for the will to be valid.
This article outlines the relevant law and the planned changes, along with some high-level guidance for those who may have to rely on the new rules in the absence of being able to execute a will in the normal way.
For a will to be valid, it must be made according to the rules set out in the Wills Act 1837 (Wills Act). These include a requirement that the testator or testatrix (the person making the will, referred to here, and by the Ministry of Justice in its guidance, as the 'will maker') must sign it "in the presence of" at least two adult independent witnesses.
Until now, 'presence' has meant physical presence. The new legislation will amend the Wills Act so that, while the legislation is in force, witnesses' 'presence' may be either physical or virtual. This will mean that witnesses may be present via video technology (eg, Zoom or FaceTime) as long as the quality of the sound and video is sufficient to see and hear what is happening in real time.
The other rules of the Wills Act, including those set out below, continue to apply and must be observed even when video technology is being used:
The government has also published guidance on the process that it recommends be followed when a will is executed remotely. Although this is not legally required, anyone making a will under the new rules would be well advised to follow the guidance, which includes:
The Society of Trust and Estate Practitioners has also published guidance with some helpful steps which should be followed where possible, including:
The government has also confirmed that existing law allows for the following physically distant scenarios:
This is a helpful confirmation that what may have already been happening during the pandemic is valid under the law as it already exists. Bearing in mind that witnesses' physical presence will always be the best means of executing a will, this is a helpful reminder of some alternatives to video witnessing.
Publication of the legislation is due in September 2020. Individuals should avoid making a will via video technology before the legislation is published unless absolutely necessary. Even once the legislation is in place, wills should be made in the physical presence of the witnesses wherever possible – for example, through a window or in a garden.
Making a will is an important step and, sadly, may be urgent in some situations, particularly in the context of the present uncertainties arising from the pandemic. These new provisions will be crucial to giving people the opportunity to execute a valid will where they would otherwise be unable to do so amidst current restrictions.
For further information on this topic please contact Katie Coles or Fiona Smith at Forsters LLP by telephone (+44 20 7863 8333) or email (email@example.com or firstname.lastname@example.org). The Forsters LLP website can be accessed at www.forsters.co.uk.
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