Following on from our previous blog, talking about the government’s announcement of new rules which will enable the use of video-conferencing technology to witness a Will. We have put together a guide to these changes.

What changes are being made to the law to include virtual Wills?

Section 9 of the Wills Act 1837 requires the testator and witnesses to all be physically present at the time the Will is signed. The main changes that have been introduced are that in exceptional circumstances the witness can watch the testator sign the Will through a video call with there being a clear line of vision.

Talk us through the steps of signing a Will virtually.

  • Stage 1: The person making the Will (“T”) and both witnesses (“W1 and W2”) all need to be sure that they can all see each other and the video call should be recorded. If W1 and W2 are not together in the same room then there will need to be a 3-way video link.
  • Stage 2: T holds the front page of the will to the camera to show 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 i.e not see just head and shoulders. W1 and W2 should both confirm verbally that they saw T sign.  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 3: W1 & W2 now need to sign. T will need to see both the witnesses sign. Again the witnesses should hold 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.

If a Will was signed virtually before September 2020, is it valid? 

The new legislation is retrospective so it will apply to Wills made since 31st Jan 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

What are the main issues that could arise if someone chooses to virtually sign a Will themselves without expert advice from a Solicitor?

These Wills should only be signed virtually in extreme cases. The manner for signing is very precise and a Solicitor will need to give clear guidance on the legislation applicable.

What top tips would you give someone looking to have their Will virtually signed and witnessed?

Speak to a solicitor before executing a virtual Will! Solicitors can give guidance on how Wills can still be signed in most cases the normal way whilst maintaining social distancing. If it is an extreme case and the Will needs to be signed through a video call then make sure you record all the calls i.e. not just when the testator signs but also when the witness signs. There will then be evidence that the requirements were adhered to if the Will is ever challenged.

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.