Changes in the Execution of Wills
In order for a Will to be valid, it must be made in accordance with the Wills Act 1837. Under S.9 of the Act there is a requirement that the testator/testatrix must sign the Will or acknowledge their signature in the presence of at least two adult independent witnesses who must be present at the same time.
Historically, ‘presence’ has meant physical presence. There have been countless cases throughout history that have prompted the Courts to determine what ‘physical presence’ actually means. In Shires v Glasson (1687) a Will was attested by witnesses in a second room, visible through a broken window through which the testator could have seen them if he had chosen to look was held to be validly executed. This was deemed to be a validly executed Will because both witnesses could see the testator signing his Will and could therefore witness it.
As a response to the COVID-19 pandemic, the UK Government has introduced temporary legislation to allow people to use video links to witness a Will, meaning the term ‘presence’ has been extended to include virtual presence. In either event, the witnesses must be visually present.
This legislation will apply to Wills made in this way after 31 January 2020 and is to remain in force until at least 31 January 2022.
Virtual presence means that witnesses to a Will may be present via video technology, such as Zoom or FaceTime. The quality of the video must be enough for the witnesses to clearly hear and see the signing. It is crucial that the other rules contained within the Act continue to apply, including;-
- Both witnesses must see the Testator sign the Will at the same time, and vice-versa;
- The Will must be circulated to the witnesses as soon as possible so that it may be physically signed by them;
- When the Will reaches the witnesses for signature, they must then allow the Testator to observe them signing their names on the Will remotely in the same fashion.
- The witnessing must be live;
- A Will only becomes formally valid once the testator and witnesses have signed it as described and in line with the other Act requirements.
As the legislation is in its infancy, there is no case law on the method of witnessing Wills via video link, and it presents greatly increased risks of challenge, opportunity for abuse and doubt as to whether the procedure has been followed correctly. The main objective behind the formalities of the Wills Act is fraud prevention and there is a strong argument that a cautious approach is required to testamentary formalities given that the document only takes effect when its maker is no longer here to give their own account.
Under the new method of virtual witnessing coercion, fraud and confidentiality may be an issue. The Will must be sent to each witness, who can then read it. Therefore careful selection of the witnesses is essential. It is recommended that the practitioner who drafted the Will should act as a witness and provide the other remote witness.
You should always seek advice from a solicitor to ensure your Will is executed in accordance with the Law. If you would like to discuss anything in this article, or would like further information or advice about making a Will, please call us on 01228 552222.