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Will witnessing by video to be made legal

It’s the news we’ve all been waiting for. The Government has finally announced it will be amending existing law to allow the witnessing of wills to be made via video - but only under certain conditions.

Whilst we have enjoyed hearing about some of the creative ways our clients have had to accommodate social distancing when it comes to witnessing signatures the Coronavirus pandemic has also pulled the spotlight firmly on to some of the legal practices that are well overdue for review.

Under the current Wills Act 1837, for a will to be legally valid, it must be countersigned by two witnesses in the presence of the individual writing the will - or the “donor”. However, as Covid-19 took hold, and the subsequent social distancing measures, these second signatures became problematic, particularly for those who were shielding or isolating, but it was also difficult for solicitors to access offices to validate paperwork or take appointments.

To add to that, the virus actually caused a spike in will-related enquiries as the elderly and vulnerable tried to get their affairs in order. The increase in will enquiries, with the difficulties in getting physical counter signatures, saw both sides of the legal sector urge the Government to change the law.

In fact, there were a few cases where some have used video platforms during lockdown to arrange the execution of a new will, in the hope that the law will be reviewed at a later date. This was not carried out due to any assurance that the law would be changed, rather that according to old case law, a will that was witnessed through a window or from a short distance away is valid as long as the witness has had clear sight of the testator signing it. However, this was a major assumption, as without specific authority this could not be assumed to apply to video links.

Finally, the announcement came that as of September 2020, wills witnessed via video call will be deemed legal. What’s more, the Government is also willing to backdate the law to 31 January 2020 - when the first case of Coronavirus was reported in the UK - and will remain in place until at least 31 January 2022.

However, remote witnessing should only be seen as a last resort and in those circumstances, certain criteria must be met in order for the video link to be deemed acceptable. For example, the quality of sound and video must be sufficient to see and hear what is happening. A statutory instrument to this effect under the Electronic Communications Act 2000 will be enabled in September, stating that the phrase "in the presence of" can either mean physical or virtual via video link.

Fraud also remains a top concern, particularly when dealing with elderly or vulnerable individuals. That's why testators are advised to exercise caution and use strict precautions to deter fraud or undue influence.

With the technical requirements for the will to be valid being even more complex than usual we advise that you seek professional guidance with the process.

If you would like some further information about writing your will, updating an existing one, or make an enquiry into drafting a Lasting Power of Attorney document, contact the Private Client team at Downs Solicitors to see how we can help.

Posted on 30/07/2020 by Amber O'Connor

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