Remote witnessing of Wills extended until 2024

The pandemic has undeniably had a lasting effect on the way we do things. Legal systems are not immune to this and legislation around Will writing and witnessing has even been altered to accommodate the ‘new normal’.

A legally valid Will requires two witnesses to be present at the time it is signed. However, despite the challenges of isolation and lockdowns, Covid-19 has undoubtedly reminded people of their own mortality and has created an influx of people writing or updating a Will. To tackle this, remote witnessing of Wills through video was introduced in 2020, and it’s now been extended until 2024.

Introduction of remote witnessing for Wills

At the height of the pandemic, legislation was introduced in 2020 under a temporary amendment to the Wills Act 1837 to allow remote witnessing to be included in the law. This change was intended to expire in January 2022 but has now been extended until at least January 2024. This makes it possible for those who are vulnerable or self-isolating (despite the recent change in guidance) to formalise their final wishes.

Remote witnessing applies to Wills made after 31^st January 2020, except:

• Cases where a Grant of Probate has already been issued in respect of the Testator’s estate; and
• Where the application for a Grant of Representation is already in the process of being administered.

What is the law on witnessing a Will?

Section 9 of the Wills Act 1837 sets out the requirements for making and witnessing a Will, and these requirements remain in force.

For your Will to be legally valid, you (the Testator) must:

• Be over 18 years of age
• Make the Will voluntarily
• Have mental capacity at the time of signing
• Sign it in the presence of two witnesses who are both over 18
• Have it signed by two witnesses in your presence; this now includes witnesses who are virtually present through video conference, e.g. Zoom or Skype, as well as in-person

For a Will signed and witnessed remotely to be valid:

• The person signing the Will, and the act of signing, must be clearly in view throughout the video conference
• The Will maker (or the person authorised to sign on their behalf) and the witnesses must sign the same document
• The witnesses, whether in-person or virtually, witness one another signing the Will

The legislation also applies to Codicils (documents that formally modify or amend an original Will), which are subject to the same witnessing rules.

The pros and cons of witnessing a Will remotely

Remote Will signing can offer you the ability to proceed with finalising your Will even if you are isolating, have mobility issues, or experience difficulty in getting to a solicitor in person. It could also possibly speed up the Will signing process in the case of parties having limited availability to meet in person.

However, remote Will signing can pose several risks:

• If a Will is contested and the signing was witnessed remotely, it may be difficult for witnesses to recollect the Testator’s state of mind at the time of signing
• How good is your internet connection? Virtual witnessing is only valid if the quality of the video and sound is sufficient to see and hear what is happening
• Remote signing limits the ability to ensure that the Testator isn’t being coerced by a third party present
• The time it takes for the Will to be passed from the Testator to the witnesses for signing also holds multiple risks:
• • A Will could be substituted for another unapproved Will
  • The Will could get lost in the post
  • If the Testator passes away within this period, the partly completed Will would not be legally valid

Minimising the risk of a virtual Will signing

If you are considering a virtual Will signing, there are ways you can minimise the risk of it being contested further down the line:

• Ideally, both witnesses should be present together and in person. If this is not possible, they can be present at the same time through a group video conference
• The Remote Witnessing Order does not require a video recording of the Will signing, but this is recommended to provide evidence in the case of a dispute
• Seek expert legal advice to ensure the writing and signing of your Will is valid

Get in touch with our Will writing solicitors

The process of writing a Will can be difficult to get your head around, and people often put it off.

Our expert Will writing solicitors in Bristol and South Gloucestershire provide practical, common sense advice, and can help you to get started. We offer appointments in our offices or remotely, and can assist in the signing of your Will. If you are unable to find suitable witnesses, we can advise you on your options.

Call our professional Will writers on 0117 325 2929 or use our simple online enquiry form and a member of our team will get back to you.