During lockdown, FJG have seen unusual ways of witnessing clients sign their Wills – in car parks, gardens, garages, over fences and through windows. On the 25th July 2020, in a change to a 183-year-old rule, the government announced new rules which will enable the use of video-conferencing technology to witness a Will.
What was the old rule on witnessing?
Under the current rules, Section 9 of the Wills Act 1837 sets out the requirements for the witnessing of a Will. The testator’s signature has to be made in the presence of two or more witnesses who have to be present at the same time. Therefore, a physical attendance and presence is needed in that the testator and the 2 witnesses had to be in each other’s line of vision. The very old and quaint case of Casson v. Dade in 1781 was an interesting case. Honora Jenkins ordered her Solicitors to prepare her Wills and then went to their office to execute it. However, the office was very hot and she suffered from asthma so she retired to her carriage to execute the Will. The witnesses went with her and after they watched her sign it, they went back to the office to attest it. She could see them from the office window. The Court considered this sufficient.
So in lockdown, it was possible for us to carry on witnessing Wills, through windows for example because the testator and witnesses have a clear line of sight.
Why do we need to change the legislation now?
Over lockdown, it became apparent that a few people who were self-isolating or shielding found the making of a Will difficult because of the requirement that the two witnesses had to be present. In some cases, people used video facilities to witness Wills and of course as there was no legislation in force at the time, so technically the validity of those Wills can be challenged.
When does the new law apply?
The new legislation is going to be retrospective so it will apply to Wills made since 31st January 2020 – which was the first registered Covid-19 case in England and Wales. However, it will not apply if Probate has already been issued in respect of the deceased person or if the application is already in the process of being administered. It will apply to Wills made up until 31st January 2022, but this can be shortened or extended if deemed necessary.
Can all Wills now be made under the new rules?
The advice remains that if Wills can be made in the conventional way they should. This should be the exception rather than the norm.
What is the new law?
It is all to do with video-witnessed Wills. It does not matter if it is over Facetime, Zoom, or Skype and it does not matter if it is on your phone, IPad, or computer. All that is important is that the person making the Will and their two witnesses each have a clear line of sight of the writing of the signature.
How do we do it?
There is a 5 stage process. You can find full details on making a Will using video conferencing on the government website but in essence:
Stage 1: Everyone needs to be sure that they can see each other and the video call should be recorded. The person making the Will (“T”) holds the front page of the will to the camera to show the witnesses (“W1 and W2”) and then T will turn to the page they will be signing and hold this up as well. W1 and W2 must actually see T sign the Will. If W1 and W2 do not know T, id will need to be shown.
Stage 2: This stage involves the witnesses and ensuring they can see, hear (unless they have a hearing impairment), acknowledge and understand their role.
Stage 3: Once the Will has been signed; it needs to be taken to W1 & W2 for them to sign, ideally within 24 hours. The longer this process takes the greater chance of problems arising later. It is only valid once signed by both witnesses.
Stage 4 & 5: W1 & W2 now need to sign. T will need to see both the witnesses sign. Again the witnesses should hold up the Will up and the signing must be in sight. If W1 & W2 are not physically present with each other when they sign then this step will need to take place twice. In both cases, T and W1 and W2 will need to see each other sign. It is good practice for W1 and W2 to sign in the presence of each other.
Attestation Clause
This is the part where T and the W1 &W2 sign. It will have to be adapted so that it is mentioned that virtual witnessing has occurred, along with details of whether a recording is available.
FJG Solicitors have continued making Wills throughout the Coronavirus pandemic under their free Wills initiative; where Wills are put together free of charge in return for a donation to charity. If you want to make or update your Will, please contact FJG’s Wills, Life Planning & Probate team, call 01206 700113, or email [email protected]. For more information on legal updates and changes during the Coronavirus pandemic, visit our Coronavirus Legal Advice hub.
This blog post follows one written in May on how to get your Will witnessed during the COVID-19 pandemic.