Libby Holding: New rules on making wills using video-conferencing

The Ministry of Justice (MoJ) has finally announced that video-conferencing can now be used for the witnessing of wills in England and Wales, writes Libby Holding, who goes through steps advisers can take to make sure they follow the newly-amended rules

The MoJ has recognised that an increasing number of people have wanted to make wills during the Covid-19 pandemic but, for those people shielding or self-isolating, it has been extremely challenging to follow the normal legalities of making a will, particularly in terms of it being witnessed by two independent people in the presence of the testator.

The MoJ has now announced that the relevant laws will be amended to state that the ‘presence’ of the witnesses can be a ‘virtual presence’ via video-link, as an alternative to physical presence. The new rule applies retrospectively to any wills made since 31 January 2020 and will apply until 31 January 2022, which allows the Government time to complete the ongoing law reform project relating to modernising wills generally.

The ‘best practice’ advice will still remain that, where a conventional attestation is possible, wills should continue to be made in this way. However, where this is not possible, live video-link technology, e.g. Zoom, FaceTime, etc. (other video technology is available) can now be used for the witnessing of the signatures.

For conventional attestations, the MoJ has provided some guidance on how to witness a will at a distance. For example, a witness must have a ‘clear line of sight’ of the testator signing to confirm they have witnessed the signature.

It has provided example scenarios that would lead to a properly-executed will provided that there was a clear line of sight, including witnessing through a window or open door of a house or vehicle, witnessing from a corridor or adjacent room through an open door, or witnessing outdoors from a short distance – in a garden, for instance.

Where this is not possible, and a video attestation is required, the process is as follows:

Step 1

  1. The testator and the two witnesses must all be ‘present’ at the same time, either by way of two of them being together in the same room, and one person joining via video-link, or by way of all three being on the video-link.
  2. Ideally, the video meeting will be recorded wherever possible, and a copy of the video retained.
  3. The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document.

Step 2

  1. If the witnesses do not know the person making the will they should ask for confirmation of the person’s identity, such as a passport or driving licence.
  2. The will maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well.
  3. The witnesses to the signature must be able to clearly see the writing of the signature on the document, as opposed to only being able to see the testator’s head and shoulders for example.

Step 3

  1. The will document should then be taken/sent to the two witnesses for them to sign, ideally within 24 hours. A longer period of time may be unavoidable but bear in mind that the longer this process takes the greater the potential for problems to arise as the will is only fully validated when the testator and both witnesses have signed it, meaning there is a risk that if the testator died before the full process has been completed, the will is not legally effective.
  2. The two witnesses will need to sign the will document, again in the ‘presence’ of the testator and each other, whether physical presence or virtual presence again. This means that unless all parties are together for this step, another video-link meeting will need to be arranged with all parties present for each of the witnesses to be able to sign.
  3. Both parties (the witness and the testator) must be able to see and understand what is happening. The witness should hold up the will to the testator to show that they are signing it and should then sign it, again with the testator being able to see the writing of the signature on the document. Alternatively, the witness could hold up the signed will so that the testator can clearly see the signature and the witness should confirm it is their signature.
  4. Again, this meeting should be recorded if possible and the recording retained.
  5. Steps 3 and 4 here will need to be repeated if the witnesses are not physically present with each other for their respective signings.

For now, the MoJ has decided not to allow electronic signatures on wills due to the risks of undue influence or fraud. As outlined earlier, the Law Commission is undertaking a law reform project which will include consideration of the possibility of electronic wills being allowed in future.

They have also decided against allowing counterpart documents as it believes the risks outweigh the benefits at this stage, hence the requirement that there is only one original document that must be signed by all parties.

The full Government guidance can be found here.

Libby Holding is legal services director at APS Legal and Associates, part of The SimplyBiz Group