Legal recognition of Video Conferencing to enable a Will to be witnessed

The coronavirus crisis and the high level of fatalities have resulted in uncertainty and concern leaving many people recognising the urgent need to make a will.  The significant restrictions of lockdown including social distancing and shielding aftermath have created obvious problems for people wanting to have a will drafted regarding regard to the legal requirement for two adult witnesses to a will to be present in person.  The government has recognised that the 183-year-old Wills Act 1837   does not reflect the current requirements and as a result the government has brought in urgent changes to the law allowing a will to be witnessed via electronic means such as video link.  Furthermore, the amendments to the Electronic Communications Act 2000  have been backdated retrospectively to January 2020 when the first coronavirus infections were noted in acknowledgement of the changes that the coronavirus pandemic has created.

A legally valid will must fulfil the following:

• The testator (person making the will) must be over the age of 18
• The will must be made voluntarily and be free from third party pressure or coercion
• The testator must be of sound mind and have testamentary capacity – that they know fully what they are doing and are capable of expressing their intentions
• The will must be made in writing
• The will must be witnessed by two witnesses over the age of 18
• The witnesses cannot be beneficiaries nor can their spouses
• The will must be signed by the testator and that the testator intended by his/her signature to give effect to the will

The new law also applies to codicils – documents that modify or amend the original will – and must satisfy the same signing and witnessing rules that apply to making a will.   

Giambrone’s experienced inheritance team welcomes the new changes but points out that ideally, the first option should be that a will should be drawn up and witnessed in the conventional manner with all parties being present in person.  The option of video-witnessing should be used only if there is a good reason that the witnesses cannot be present.  The new legislation requires all the previous requirements to be met and in the event of a video-witnessed will the testator must include a phrase to reflect this, for example, “I first name second name, wish to make a will of my own free will and will sign it here before these witnesses, who are witnessing me doing this remotely.”

The nature of the video-conferencing platform or the device that is used is not relevant provided the witnesses have clear line of sight to the act of signing the will by the testator, therefore, pre-recording is not permitted the witnesses must see the testator actually sign the will.  It would be a wise precaution to record a video-witnessed will and save the recording which would form compelling evidence in the event of a challenge to the will and provide the possibility of detecting undue influence or the testator’s lack of capacity or even fraud.  

Other changes to reflect a more modern approach such as electronic signatures have been put on hold following the Law Commission’s 2017 consultation paper on wills as the consultation paper identified the risks of fraud and undue influence. The Law Commission is at present undertaking a law reform project which is considering the possibility of electronic signatures for wills in the future.

The government has also stated that use of video technology should remain a last resort and that the physical witnessing of wills should continue when safe to do so.

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