HOW TO MAKE A WILL USING VIDEO CONFERENCING
One of the challenges thrown up by the Covid-19 Pandemic is how a person intending to make a Will can comply with the requirements of the Wills Act 1837. The 1837 Act requires that a Will shall not be valid unless:-
i) It is in writing and signed by the Testator or by some other person in his/her presence and by his/her direction and;
ii) It appears that the person making the Will intended by their signature to give effect to the Will and;
iii)The signature is made or acknowledged by the person making the Will in the presence of two or more witnesses present at the same time and;
iv) Each witness either attests and signs the Will or acknowledges their signature in the presence of the person making the Will.
In addition, the person making the Will (if male described as “Testator” and if female described as “Testatrix”) must fully understand what they are doing and be able to express their intentions and that they are not being unduly influenced by anyone else.
Insofar as the witnesses are concerned, whilst an Executor to the Will can be a witness, a Beneficiary or the spouse of a Beneficiary must not be a witness otherwise they may lose whatever has been left to them in the Will.
The witnesses to the Will must have a clear line of sight and be able to see the Testator/Testatrix signing the Will.
The Government have decided to introduce legislation to allow people to use video conferencing technology for the witnessing of Wills being made. The legislation will apply to Wills made since the 31st January 2020. The latest legislation would appear to be temporary insofar as it will apply to Wills made up to 2 years from when the legislation comes into force (until the 31st January 2022). When the new law ceases to be in force people will only be able to make new legal Wills using the normal methods.
The video witnessing procedure can work in the following scenarios by way of example:
Scenario 1 The Testator/Testatrix is alone and the two witnesses are in each other’s presence but they are viewing the signing of the Will via a live action video conference link.
Scenario 2 All three parties are alone in separate locations but are connected by a three-way live action video conferencing link.
Scenario 3 The Testator/Testatrix and one of the witnesses are in each other’s company whereas the second witness is connected by a two-way live action video conferencing link.
Scenario 4 Testator/Testatrix is in the same location as a person signing the Will on their behalf and at their direction and the two witnesses are connected by a two or three-way live action video conferencing arrangement.
In practical terms when using the video link, the Testator/Testatrix will sign their Will ensuring that the witnesses can see the signature being made.
The video should be recorded.
The Testator/Testatrix shall hold the front page of the Will up to the camera to show the witnesses and then turn to the page the witnesses will be signing holding this up as well.
Once the witnesses can confirm that they can see the Will being signed and then separately the Will document should be delivered to or send to the two witnesses for them to sign ideally within 24 hours of it having been signed by the Testator/Testatrix. If it not possible for the Will to be witnessed within 24 hours a longer period may be acceptable but the quicker it is done, the less likelihood there is of there being problems with the challenge to the legality of the Will.
The Will is validated once it has been properly witnessed by both witnesses and again when the witnesses sign this must take place by way of video link and the Testator/Testatrix must be able to see them signing and the witnesses will hold the Will up to the camera to show where they are signing and once the Will has been signed. Again, this session should be recorded if possible.
If the two witnesses are not physically present when they witness the Will there is a potential for a third video link.
It is recommended where this process is adopted for it to be made clear that virtual witnessing has occurred with regard to the signing of the witnessing of the Will.
This is a most helpful step which has been taken by the Government and hopefully this will alleviate the fears and concerns of people who have struggled to make arrangements during the Pandemic to have their Wills properly signed and witnessed in accordance with the current law made 180 years ago.
Interested in making a Will?
The important thing to note is that the changes are proposed changes and they have not yet been made law.
If you do require any assistance or even a non-obligatory chat, please do contact a member of our Team on:
T: 0116 2999 1999 Option 0