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27 Jul 2020

Wills & Probate

Video witnessing of wills made legal in change to centuries-old law

As the Ministry of Justice announces a change to its 183-year-old rule on the witnessing of wills, following difficulties experienced by many people wanting to put their affairs in order during the Covid-19 pandemic, our Head of Wills & Probate, Laura Selby, gives her reaction.

Since the lockdown started back in March, social distancing measures have made will signings difficult for many people. To be validly executed, a person must sign their will (“the testator2”) in the physical presence of two witnesses. The witnesses must then each sign the will in the testator’s presence. The witnesses cannot be beneficiaries of the will or a spouse/civil partner of a beneficiary.

Luckily, we have been able to continue operating throughout the last four months within the constraints but we’ve had lots of examples of our team having to witness wills being signed through open windows and over garden walls!

To overcome this problem, the Ministry of Justice (MoJ) has announced that the video witnessing of wills via apps such as Zoom and Skype is to become legal. This change to the law will have retrospective effect and will apply to any wills executed after 31st January 2020. This will not be a permanent change, however, but will be reviewed again in two years’ time.

This move towards video witnessing will mean the current requirement in the Wills Act 1837 that the witnesses need to be ‘present’ will no longer be strictly interpreted as physically present. It will place more weight on the witnesses having line of sight of the testator signing their will, which can obviously be achieved by video link. There is, however, guidance from the Ministry of Justice as to how this form of witnessing should be carried out to ensure legal formalities are still complied with.

We are not surprised that the Ministry of Justice has decided to relax the rules. Indeed, the Law Society for Scotland announced back in April that it was acceptable for Scottish practitioners to witness wills remotely. This change to the law may make our lives much easier going forward and may give some reassurance to those people who have struggled to get their wills witnessed safely without going against the social distancing advice.

We will continue to work closely with our clients to ensure their individual needs are met, however, as we are concerned that some clients, particularly the elderly and vulnerable, may not be comfortable with adapting to this change. We will need to be extra vigilant too when using video witnessing – for instance, someone could be out of sight and influencing the client’s decision – as if there is any doubt over whether or not a will was signed properly, we could see a rise in disputes over wills, which can be very upsetting for families. There are also the practical difficulties that may arise from transporting the will signed by the testator to the witnesses for them to sign it (which they will then need to do in front of the testator via video link). Witnessing wills via video link may be regarded as a last resort option when the more usual method is deemed unsafe from a health perspective.

If you would like to talk to one of our friendly, specialist team at Harding Evans about writing a will, we have years of experience and can talk you through the whole process. Visit our website at www.hardingevans.com, email hello@hevans.com or call 01633 244233 or 029 2267 6818.


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