New Approach to Wills
What will the new legislation around the witnessing of Wills mean in practice? Partner Elaine Lightfoot explains.
An understandable reaction to the COVID-19 pandemic has been the vast increase in Will instructions received since late February this year, with many firms seeing a rise of up to 70 per cent as individuals, often those elderly and/or vulnerable, sought to make new Wills or update existing, outdated Wills.
One practical difficulty during lockdown (and on a continued basis for those still shielding) is how to ensure Wills are signed and witnessed in accordance with the Wills Act 1837 which states that for a Will to be valid it must be signed in the presence of two independent witnesses both of whom need to be present at the same time as the Testator signs. Witnessing via video messaging is not permitted under the Wills Act and it was felt by many, particularly in light of the pandemic, that review of this outdated legislation required immediate attention.
Accordingly, The Law Society, the Society of Trust and Estate Practitioners (STEP) and the Ministry of Justice have been working on ways to enable Wills to be witnessed remotely, for example via platforms such as Zoom or FaceTime.
The Law Society has, as a result, issued updated guidance in anticipation of the Government’s agreement to introduce new legislation to allow Wills to be witnessed remotely for the next two years. Legislative changes to the Wills Act 1837 are therefore to come into force in September and be backdated to 31 January 2020 meaning that any Will witnessed remotely from that date will be legally accepted as having been signed and witnessed validly. The changes are currently to remain in place to 31 January 2022, however, this may be extended or shortened if it is considered appropriate. After this date, Wills must return to being completed with two witnesses being physically present at the signing of the Will (a clear line of sight being required) and so it is possible for Wills to be witnessed in a socially distant manner in any event.
Under the new legislation, the quality of the sound and video must be sufficient to see and hear what is happening at the time. The witnesses must see the Will being signed in real-time and pre-recorded videos will not be permissible. It is recommended that the video-signing and witnessing process should be recorded and the recording retained. This may assist a Court in the event of a Will being challenged, whether it be in terms of whether the Will was made due to undue influence or concerns surrounding lack of capacity, or if the Will was made in a legally valid way.
It is recommended that the use of video technology should remain a last resort and, where possible, Wills should be completed with physically present witnesses. As a firm, we continue to advise our clients how this can be achieved. All existing conditions regarding the witnesses still remain, for example, any witness should not be a beneficiary under the Will as any gift to them will become void.
The changes to the legislation will be welcomed by those shielding but, as with all Wills drafted by professionals, extreme care is still required in assessing capacity and undue influence for all testators and such issues are only heightened when unable to meet with clients personally.
