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Under Section 9 of the Wills Act 1837, there should always be two witnesses present during the physical signing of the Will with the testator (the person who has made the Will). The witnesses would also be required to sign the Will in the testator’s presence to validate the document. These rules have been key pillars in the process of validating a Will until the Covid-19 pandemic brought about unprecedented change. As the death rates began to increase, restrictions were put in place by the government, which lead to the elderly population being forced into self-isolation. Suddenly, the need for valid Wills to be made in a timely and efficient manner became a priority.
As a result, new legislation was introduced in 2020 broadening the definition of the witnesses needing to be “in the presence of”, to include video conferencing and “other visual transmission”. This was subsequently backdated to January 2020 and kept in place until January 2022. The government has recently announced that it has extended the legislation till January 2024.
So, why has this legislation been extended when only 14% of solicitors who drafted Wills during lockdown took part in remote witnessing? According to reports from the Law Society, the option to remote witness has proved helpful amongst vulnerable people who need to set their affairs in order and cannot afford to do so in a physical capacity. This legislation was created to support those who are isolating, vulnerable or incapacitated by further restrictions, and has seemingly achieved this goal. However, “video conferencing” to witness and validate a Will is not without its complications.
One of the risks a solicitor must be aware of is that the testator could lose their mental capacity to validate the Will over time. If the testator is not in a proper capacity to sign their Will, it would be difficult to tell this through a screen. There could also be a chance that undue influence is at play by someone off-camera and out of sight during the signing. Unfortunately, there is no concrete way of confirming that the testator is alone and/or uninfluenced over a video call.
There is also a risk of documents going missing in the post. A Will is only valid once it is signed by the testator and both witnesses. If the Will is lost in the post before being signed by the witnesses it will need to be re-signed, causing unnecessary delays. If there is a delay between the testator and the witnesses’ signings, there is a high probability that the testator (especially a vulnerable person) could die before the Will is completed.
It is important to note that although video witnessing is a legal method to validate your Will, it is not the most secure. There is a potential risk of fraud. If a third party posts or delivers the Will, there is a risk they could replace certain pages or the Will in its entirety. The Ministry of Justice (MOJ) have also stressed that the “the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so.” There are several ways in which Wills can be witnessed, such as witnessing through a window, carpark witnessing or from another room in the property.
Here at Aston Bond, we believe validating any Will is a matter of great importance and for that reason we encourage signing your Wills in person at our offices or via a home visit. It is imperative to confirm that the testator has full mental capacity and is not being coerced or pressured to sign the Will in any way. We would recommend that other options should be explored before relying on video witnessing.
For more information on making valid Wills through using video conferencing, you can check out:
https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing#video-witnessing
If you have any queries, please do not hesitate to contact myself at kkumari@astonbond.co.uk or Rachel Jones at rjones@astonbond.co.uk
