30th October 2020
Video witnessing to be made legal — How to Make Your Will Virtually
During these uncertain times, it’s more important than ever to make sure your family will be protected under any circumstances. Writing a will is crucial to your overall estate planning and post-mortem procedures. However, the law of England and Wales has required two in-person witnesses for will creation. Now, in light of COVID-19, video witnessing is permissible. Here’s what you need to know.
The new provision is retroactive
The change in law has been backdated to 31 January 2020, and the new allowance will continue until 31 January 2022, if not later. So, if you have already used videoconferencing for your witnesses during this period, you can rest assured that your will is considered legally binding and valid. However, the government does request that wills be witnessed in person whenever possible.
Electronic signatures are still not allowed
Although the witnessing itself can be virtual, the witnesses’ signatures must be physical. Those creating their will may need to use couriers or mail services to ensure that all witnesses legally sign the document. Note that the will’s creator needs to see the witnesses make their signatures, so in some cases, up to three separate video conferencing sessions will need to happen. Also, the will document ideally is completed by all parties within 24 hours, which may present challenges if the witnesses are far apart.
The videoconference must be high-quality
If poor connectivity or other issues prevent any party from hearing or seeing the will’s creation, the virtual witnessing may not be permitted. All parties must be able to clearly hear, see, and comprehend each other’s statements and actions during the session.
The video feed must show the entirety of the act
Each witness must be in full view of the will’s creator, so that their face, their signing hand, and the will itself are all visible. Ideally, the entire space around them is also shown so there is no suggestion of undue influence or secret attendees during this private event.
The videoconferencing must be live
While the signing itself cannot be pre-recorded (i.e., a witness records themselves signing the will, then sends it to the will-maker), the live virtual witnessing can and should be recorded. The easiest way to do this is to use a tool such as Skype or Zoom, then begin recording the videoconference once it starts. Should the will be challenged, it will be crucial to have the recording.
The new law applies to codicils as well
Should you need to modify an existing will, you can use video witnessing to make the required adjustments and supervise witnesses’ signatures. As with will creation, all signatures and statements should be clearly covered by the video feed and preserved in a recording.
Witnesses should still sign together when possible
While both witnesses and the will-maker can all legally sign separately via videoconferencing, the government still recommends that the witnesses sign in each other’s physical presence. If this is not possible, a three-way video conference must be created in which all parties can clearly see and hear each other make their signatures.
The will should state that the witnessing will occur virtually
If a will is to be witnessed via video conference, the document must state as such. Ensure that the will contains a bespoke attestation clause describing how the witnessing shall occur.
Socially distanced witnessing is also allowed
If videoconferencing is not viable or if there are concerns about the timing of getting all signatures, parties can also witness with social distancing as long as line-of-sight is maintained. For example, the will-maker and their witnesses may supervise each other’s signatures through a window, corridor, or from a safe distance, as long as they can clearly see that the will is being signed.
The new legislation is intended as a temporary measure to facilitate will creation during the COVID era. Physical witnessing is still recommended, and physical signatures are absolutely required. However, virtual witnessing is a viable alternative and can be immensely useful for high-risk individuals who need to create or update their will. They and their witnesses should aim to replicate an in-person will-signing event whenever possible, maintaining full visibility and documentation of all signatures.
For assistance in preparing your will and ensuring that all witnessing and signatures are conducted lawfully, reach out to Elizabeth Middleton Solicitors. We are pleased to offer virtual, COVID-safe options to ensure that your estate is properly planned and your wishes made known. Contact us today to learn how our services can help you and your family prepare for the future and protect your estate.