Will witnessing via video set to bring its own challenges

Charles Hutton, partner, Charles Russell Speechlys, 29/07/2020

Lockdown made the execution of Wills difficult, and it is good news that the government is allowing Wills (and Codicils) to be witnessed by video link in England and Wales. The new rules are to be backdated to 31 January 2020 and are expected to remain in force for two years. However, it is essential that the procedure is followed very carefully. There is more scope for abuse than under the traditional method.

The traditional method is set out in the Wills Act 1837. The testator must sign in the physical presence of two witnesses. Usually this means being in the same room together, and in the vast majority of cases all three sit round a table and the whole process is over in a few minutes. In fact being in the line of sight is sufficient. The witnesses can watch through the window of a building or a car. Or they can be at a short distance, for example in a garden. 

These scenarios have been very useful recently as they generally allow social distancing to be observed. But there are situations where even these methods are not really feasible. During the tight lockdown period, it might not have been possible to arrange this, particularly where the testator might have been shielding or in hospital or a care home (where the staff are often not allowed to act as witnesses).

Now it is possible for the witnessing to be done virtually, provided it is done in real time. The three people involved (testator and the two witnesses) can all be in different locations, or two of them can be in one location and the third in another. All three must be able to see each other and the witnesses must be able to see the testator signing. It is good practice for the whole episode to be recorded.

The Will, that is the physical document, then needs to be taken or sent to the witnesses for them to sign. The testator must see each of them sign (again by video link if necessary), but the witnesses do not necessarily need to see each other sign. The document does not come into effect until everyone has signed. It will be important to make a careful note of when that is. If the testator makes a new Will (Will 2) before the earlier Will (Will 1) has been signed by the second witness, then it seems that Will 2 will be revoked when Will 1’s signing procedure is completed.

As with the traditional metho...

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