Amy Thomas, solicitor in our Wills and Probate team, gives the latest update on the use of video link to witness a Will
2020 has been the year of change. As a society we are having to change the way live, socialise and work, with a huge increase on reliance in technology. Needless to say, the law has also had to adapt to the ongoing pandemic, with one of the most significant updates applying to the way Wills can be validly executed.
The update
Section 9 of the Wills Act 1837 stipulates that a Will is not valid unless it is signed by the Testator (the person preparing the Will) in the presence of two witnesses who are present at the same time and who also sign and witness the Will.
However, on 28 September 2020, an additional sub-section was added to Section 9 of the Wills Act 1837, to extend the meaning of the word “presence” to also include presence by way of videocall or other visual transmission. The change to the way Wills can be witnessed is backdate to all Wills made on or after 31 January 2020 (which was the date that the UK had the first confirmed case of COVID 19) and will continue to apply to Wills made on or before 21 January 2022.
How it works in practice?
Step one:-
Once the Will is approved and has been sent to the Testator, a videocall will need to be arranged between the testator and the two people they wish to use as witnesses. The witnesses cannot be named in the Will, related to the Testator or under the age of 18. The Testator then signs their Will whilst the two witnesses are on the videocall, ensuring that both witnesses have a direct line of sight to see the Testator sign. The same two witnesses must be used throughout the signing process.
Step two:-
The Testator then sends the Will to Witness One. A second videocall is required with the Testator and the same two witnesses. Witness One will then sign the Will in the presence of both the Testator and Witness Two, again ensuring that all parties have a direct line of sight and can see Witness One sign.
Step three:-
Witness One then sends the Will to Witness Two. All three parties have a final videocall, whereby they watch Witness Two sign the Will, once again ensuring that all parties have a direct line of sight and can see Witness Two sign.
Step four:-
Only once the Testator and both witnesses have signed the Will is it deemed valid.
The advantages
During the initial lockdown, our Private Client team saw an influx in clients wanting to prepare Wills. When we were operating under the restrictions, it could be difficult to facilitate the Will signing, due to the COVID19 Welsh Government Guidance social distancing and shielding measures in place. Witnessing via video link, provided a welcomed solution to this problem.
The risks
- Under usual circumstances a Will is signed and witnessed and therefore valid, in the space of a few minutes. With the changes, there is a possibility that there could be a long length of time from the date the Testator signs their Will, to the date the Will is actually deemed to be valid.
- The Testator may be reliant on the postal service. Given that the Will potentially has to be posted between several parties and there is a risk it could go astray in the post.
- When we meet with clients to sign their Wills, we must always ensure that they are not being influenced by family or friends into making their decisions, and that they have sufficient mental capacity to sign their Will. In allowing will signings to take place remotely, via videolink, there is a risk that the Testator is being influenced or may not have capacity, in the absence of witnesses being physically present. It is therefore possible, that in the future we could see an increase in the number of people making claims against Estates, arguing that the Will was not validly executed.
Tips
Significant consideration would need to be given as to who would be the most appropriate witnesses if the Will is to be signed via video link, for example, would a friend who lives in another part of the country be appropriate, or would it be better to use people locally, perhaps even the solicitor who has prepared your Will?