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'Lockdown Wills' made via video link to be made legal

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Wills witnessed over video link software such as Zoom, Skype and FaceTime became legal in September 2020. The law has also been backdated to validate any Will made via video link on or after 31 January 2020.

There are few people in the UK who have not been affected by the coronavirus/Covid-19 pandemic in one way or another. With so much uncertainty, it isn’t surprising that many of us have started to think about what might happen if we should pass away and whether our family would be properly provided for.

Making a Will is essential to ensure that your money and property is left to the right people as tax efficiently as possible after you die. However, the current law on making a Will has posed a problem for thousands of people during the pandemic, particularly those who have been shielding or self-isolating. The rules state that a Will must be witnessed ‘in the presence of’ at least two witnesses otherwise it is not valid. Lockdown restrictions, social distancing measures and guidance on shielding and self-isolating have all made making a Will very challenging.

People have therefore come up with some creative methods to get around the rule, such as witnessing the Will through a window or outside while standing two metres apart. Other people turned to video link software, however, Wills made in this way would not traditionally be considered valid.

Wills made via video link legal from September 2020

Fortunately, the Government has recognised the issues testators are facing due to the pandemic and has now introduced a statutory instrument to make Wills witnessed via video link software legal. Commenting on the new law, Justice Secretary and Lord Chancellor, Rt Hon Robert QC MP stated,

“…we know that the pandemic has made this process more difficult… Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable.”

The law applies to all Wills made since 31 January 2020 (other than cases where the testator has already died and a Grant of Probate has been issued).

The law is intended to be temporary and the current plan is for it to expire on 31 January 2022. However, this term could be made longer or shorter depending on demand. Once the law has expired, the old rules on witnessing will come back into force.

How will the law work?

As well as the witnessing requirements, there are other various legal requirements that must be fulfilled for a Will to be held legally valid.

Only the witnessing aspect of the law that has changed so testators must still ensure that they comply with all the other requirements. The other requirements are:

  • The testator must be age 18 or over
  • The Will must be in writing and signed by the testator or by someone in their presence
  • The testator must intend that their signature gives effect to the Will
  • There must be at least two witnesses age 18 or over. They cannot be blind and should not also be beneficiaries (or their gifts under the Will are likely to be held invalid)
  • Each witness must sign the Will or acknowledge their signature is signed by someone else on their behalf
  • The testator must have ‘testamentary capacity’. I.e. they must understand what making a Will means, how much money and property they own and the effect of the Will

“Can you see me now?” – the practical challenges of executing a Will via video link

Although the changes will make Will writing much more accessible, there are still a few procedural challenges associated with witnessing a Will via video link. For example, the witnesses must still sign the original Will document; they cannot sign a verified copy. This means that the witnessing process must be done in several stages with pauses while the Will document is transported between the testator and each witness.

The witnesses must also have a ‘clear line of sight’ to the signing of the Will. Traditionally, this means the witnesses should be standing physically near the testator, looking at the Will document while the testator or someone on their behalf signs it. When looking at the Will document over a computer screen, how can you guarantee that the witnesses can see properly?

Fortunately, the Government has set out clear guidance about how to execute a Will when the witnesses are carrying out their role via video link software. For example:

  • All parties should ensure that they have a satisfactory internet connection (to prevent lagging or freezing as much as possible)
  • The entire process should be recorded
  • The testator must take steps to ensure the witnesses can see, such as:
    • Holding the Will document up to the screen before signing
    • Verbally asking the witnesses whether they can see them actually writing their signature (rather than just their back or head and shoulders)
    • Showing the witnesses identity documents if they have never met before
  • In turn, the witnesses should:
    • Verbally confirm that that they can see and hear (unless they are hard of hearing)
    • Verbally confirm that they understand what their role is
    • Ask the testator to show identity documents if they have never met
  • The entire Will signing process should ideally be completed within 24 hours
  • When signing the Will, the witnesses should undertake the same process as the testator (for example, asking whether everyone can see before signing)

It is important to consult a specialist Wills solicitor before attempting to execute a Will via video link. They will ensure the process is done correctly, including drafting an ‘attestation clause’ in the Will document that states witnessing was done via video link and where the recording can be obtained.

Could a Will made via video link be challenged?

It is still too early to know whether many court challenges will arise out of Wills made via video link software. However, if the Will is made according to the Government’s guidance, it seems likely that it will be held valid.

If the Will is challenged, there should be a recording that can be used to prove that the proper process was followed.

That being said, if you made your video link Will before the law was changed and the guidance published, you should speak to a solicitor to check whether it is valid.

Get expert advice about making a Will using video link software

If you are thinking about making a Will but are facing difficulties due to the Covid-19 pandemic, our friendly Will solicitors in Bristol can provide practical advice about your options, including making a Will in a socially distanced setting or via video link software, such as Zoom, Skype or FaceTime.

Give us a call at your local office in Shirehampton or Westbury on Trym or fill in our online enquiry form and a member of our team will be in touch shortly.