In response to the COVID-19 pandemic, the government has announced that the law will be changed to allow Wills to be witnessed virtually for the first time. For charities, it is crucial they understand the changes and how it may affect their legacies.
The existing law about Will making is governed by legislation first brought in almost 200 years ago: the Wills Act 1837. The formal requirements to validly execute a Will have changed very little in this time. These are:
- The Will must be in writing and signed by the testator (or by some other person in the testator’s presence and at their direction);
- It appears that the testator intended by their signature to give effect to the Will;
- The signature is made (or acknowledged by the testator) in the presence of at least two witnesses who are present at the same time; and
- Each of the witnesses also signs/attests the Will in the presence of the testator.
Witnesses are able to validly witness a Will through a window or doorway. It is therefore possible for the existing formalities to be complied with even in a world of social distancing.
But it has proven challenging in the current circumstances, and the formalities may cause particular problems for vulnerable people who have had to shield.
The government has accordingly decided to amend the existing 1837 Act to state that the “presence” of the person making the Will and the witnesses includes a virtual presence. The change to the legislation applies to Wills executed from 31 January 2020 and is limited for two years i.e. until 31 January 2022.
What has changed?
The witnessing of a Will can now take place over live video conferences, and it is recommended that these video conferences are recorded for future reference. The process will be:
- The testator and both witnesses hold a live video conference. The witnesses do not both need to be in the same place. The testator shows the Will to the witnesses, who must both be able to see the testator actually sign the Will (i.e. it will not be sufficient to just see the testator’s face – they must have a clear view of both the testator and the pen on the paper).
- Once the Will is signed by the testator, the physical Will must then be passed to the witnesses. This should be done within 24 hours if possible, but the guidance recognises that delay may be unavoidable.
- There will then be a second video conference, again between the testator and both witnesses. The witnesses will sign the Will on the call (this time it is the testator who must have a clear view of the witnesses actually putting pen to paper).
If the witnesses aren’t in the same place, step 2 and 3 will need to be repeated with each witness. While it is not strictly necessary for the witnesses to see each other signing, it is recommended as best practice.
If the testator passes away before the witnesses have also physically signed the Will, it is not valid.
What hasn’t changed?
While witnessing can now be virtual, signatures cannot. The guidance specifically notes that electronic signatures are still not permissible – even when witnessing over video conference, the Will must be physically signed by the testator (or by someone on their behalf) and the witnesses to complete the execution.
Similarly, the guidance also confirms that counterpart copies are not permitted – the testator and the witnesses need to all sign the same physical copy of the Will.
The legislative changes do not apply to Wills made since 31 January 2020 where a Grant of Probate has already been obtained or an application is already being processed.
Finally, the guidance is clear that virtual witnesses should be a last resort – if the existing formalities can be followed, they should be.
The Bates Wells view – comment from Leticia Jennings, Partner
While a concession to the usual Will execution formalities is welcome in these unusual times, particularly for testators who may be shielding, there are still concerns to be wary of. Although the guidance makes clear that virtual witnesses should be a last resort, the guidance could leave already vulnerable people open to abuse. Witnesses may not be aware of a person off-screen pressuring a testator, and they would have no way of knowing whether the signed document they subsequently receive is the exact document they saw previously on screen or not. There is also the issue of the video “evidence”, and thought needs to be given to who will police editing of recordings after the event.
Less than scrupulous friends or family members might use these new rules to arrange for testators to change their wills to their advantage, and this could include cutting out gifts left to charities.
Now that lockdown has eased, our view is that we should be encouraging professionally drawn wills that come with advice and the benefit of the solicitor’s professional negligence insurance.
We anticipate that the new rules may lead to a new stream of validity challenges down the line, which charities should ensure they are equipped to deal with.