New legislation allows video-witnessing of a Will during the Covid-19

In July 2020, the Ministry of Justice (MoJ) announced that video witnessing of Wills was to be made legal during the coronavirus pandemic. Our position is still to witness a will in the traditional way which is also the position of the MoJ. This is because witness a will via video, could mean upto 3 separate video sessions, preferrably within 24 hours of the testator signing. Umpteen problems could occur. In our opinion not worth the risk, if you can avoid it.

As health concerns pushed many to take steps to make or update their Wills, practical considerations made it difficult for the document to be legally witnessed.

Witnessing a Will

Normally, the signature to a Will is witnessed by two people. Where the person making the Will, known as the testator, is not able to sign themselves, there could also be a fourth person in the room, signing on their behalf.

Everyone must be present at the same time and watch the testator sign or acknowledge their signature, in the event that they had signed the document previously.

The witnesses need to add their names, addresses and occupations, but do not have to have read the Will or be aware of its contents.

The job of a witness is to be able to say that the testator is the person who made the Will and signed it, that their signature is genuine, that the testator has not been coerced into signing and that they are mentally capable of understanding what they are signing. The witnesses must be aged 18 or over and not the spouse or civil partner of the person making the Will or a beneficiary under the terms of the Will or the spouse or civil partner of a beneficiary. It is permitted for someone named as an executor to sign the Will however.

Video witnessing

To enable those who are self-isolating during the Covid-19 outbreak to be able to make a Will, the law now permits the witnessing of a Will to take place via video, for example, over Zoom or Skype. The government has made it clear that this should only be a last resort. The legislation currently allows video witnessing to take place until 31 January 2022, although this could be reduced or extended according to circumstances.

The witnesses will have to be able to see the testator signing the Will, so the video will need to show their face, hand, pen and the document, and not just head and shoulders. The signature will have to be a real signature and not an electronic signature. The video must be in real-time and not a recording.

After the testator has signed, the Will must be sent to each witness for them to add their signature, preferably within 24 hours.

The importance of having a Will

By leaving a Will you can ensure that your estate passes to those to whom you would like to leave it. It can also reduce the likelihood of family disagreements.

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Witnessing your will via video

The Ministry of Justice (MoJ) has announced that it has temporarily legalised the witnessing of wills by video, in an update to legislation that is over 150 years old.

The amendment recognises the challenges presented by the Coronavirus crisis of witnessing wills in person due to social distancing requirements.

Dispensation has been given to enable us to witness your will in a socially distanced way by

  • Witnessing the will through a window or an open door of a building or a vehicle,
  • Witnessing the will from a corridor or an adjacent room with the door open,
  • Witnessing the will outdoors from a short distance ie. the garden.

However in cases where it is impossible to witness the Will in person, this temporary measure will enable the witnessing by video

Commenting on the change, The Institute of Professional Willwriters, the membership body for wills and probate practitioners, has said

“We had been corresponding with MoJ between April and June regarding this matter and pushing for the government to relax the regulations. And whilst they indicated that the government had no plans to make any changes we are of course delighted that this change has been considered to be appropriate in all the circumstances, It will allow more testamentary freedom for clients and ensure that they are able to create effective Wills whilst in isolation or quarantine that will be recognised in law if witnessed via video conferencing.”

We must stress however that the guidance is clear that the preferred method of will witnessing continues to be in person and where possible this should be adopted.

And even in cases where wills have been witnessed via video, we urge the re-signing be completed in person as soon as is feasibly possible.

The amendment will remain in place as long as it is deemed necessary, provisionally until 31 January 2022.

We continue to offer telephone and video consultations as well as some home consultations provided a Covid-secure environment can be facilitated.

At ADL Estate Planning we work closely with our colleagues from several major practices to support them in ensuring their clients are provided with bespoke estate planning solutions. Should you be a professional or a potential client don’t hesitate to reach out via our scheduling window below: