The Covid-19 pandemic has prompted many people to put in place a will, in order to ensure that their assets pass in accordance with their wishes in the event of their death. For a will to be legally binding, it is crucial that it is executed in accordance with strict formalities set out in the Wills Act 1837. In particular, this requires the person making the will to sign it in the presence of two independent witnesses. However, complying with these formalities has proved to be a challenge for many people in light of social distancing and self-isolation requirements.
A number of jurisdictions have responded by relaxing their will signing requirements – for example, emergency guidance issued for Scottish solicitors on 25 March 2020 by the Law Society of Scotland confirmed that wills could be witnessed via video-conference. Professional bodies have been lobbying for several months for similar changes to be made in England and Wales. A very welcome statement was finally issued by the government on 25 July 2020, announcing that it intends to make changes to the Wills Act in order to legalise the remote witnessing of wills in England and Wales. Legislation to implement the amendments has not yet been published; however, key points to note from the government’s press release and draft guidance are set out below.
It is expected that these measures will come into force in September 2020 but that they will be backdated to 31 January 2020 (the date of the first confirmed Covid-19 case in the UK), meaning that wills witnessed remotely earlier in the pandemic should be valid. However, the changes will be temporary and will apply only until 31 January 2022, although the government notes that this period can be shortened or extended if necessary. The government has also confirmed that, in the longer term, it intends to consider wider reforms to the law on making wills.
- Amendments will be made to the Wills Act to provide that, where wills must be signed in the "presence" of two witnesses, their presence can be either physical or virtual. Where virtual witnessing is chosen, the type of video-conferencing or device used is irrelevant, as long as the person making the will and the two witnesses all have a clear line of sight of the act of signing the will. So, for example, the camera must be positioned to ensure that the witnesses can actually see the will-maker writing their signature and not just their head and shoulders.
- Witnessing pre-recorded videos will not be allowed – the witnesses must see the will being signed in real time.
- If the witnesses do not know the person making the will, confirmation of their identity (for example, driving licence or passport) should be shown.
- The will-maker should hold both the front and signature pages of the will up to camera so that the witnesses can see the document being signed. The witnesses should also confirm that they can see and hear what is happening, and that they understand their role.
- Once the will-maker has signed the will, the document must be sent or taken to each of the witnesses for them to sign, ideally within 24 hours. This should also take place via video link so that the will-maker can see both witnesses sign.
- The government suggests that a recording should be made and retained of the whole signing/witnessing process.
What amendments will not be made?
It is clear that, aside from the temporary amendment to the meaning of the word "presence" in the Wills Act, no other changes are intended to be made. In particular:
- all other existing formalities in the Wills Act shall remain in force, meaning that, for example, the two witnesses cannot be beneficiaries under the terms of the will;
- electronic signatures will not be permitted; and
- "counterpart" wills (i.e. when two copies of the will are printed and the will-maker signs one copy and the witnesses sign the other copy) are not to be allowed.
The government has emphasised that video-witnessing of wills should be viewed as a last resort, and that physical witnessing is the preferred option if it is safe to do so.
Clarifying the existing law
Finally, the government has also clarified a number of points on what is acceptable under the existing law regarding the witnessing of wills. In its draft guidance, it confirms that a will which is witnessed in the following scenarios is properly executed under existing law, provided that the person making the will and witnesses have a “clear line of sight” of the act of signing the will:
- witnessing through a window or open door of a house or vehicle;
- witnessing from a corridor or adjacent room into a room with the door open; and
- witnessing outdoors from a short distance, for example, in a garden.
While some very old case law had already suggested that this would be acceptable, the position was not free from doubt so it is a welcome clarification.
We await publication of the relevant legislation with interest. In the meantime, will-makers could, in theory, decide to go ahead with the remote witnessing of their will on the basis that these changes are intended to have retrospective effect. However, before the wording of the final legislation is known, we would advise against this course of action if at all possible, and will-makers should also be reminded of the government’s advice that video-witnessing should be viewed as a last resort in any event. For those who are concerned about minimising the health risks whilst also complying with current requirements in the Wills Act, the government’s confirmation that witnessing through a window or outdoors at a "social distance" is acceptable may well provide a sensible solution.
The government’s decision to allow wills to be witnessed remotely for the next two years will help alleviate the difficulties that some members of the public have encountered when making wills during the pandemic.