Wills witnessed over video link will be legally valid under new rules

Wills witnessed over video link software such as Zoom and FaceTime will be made legal, the Government has announced. This will be welcome news to many people who have been isolating due to the Coronavirus/Covid-19 pandemic.

The law states that a Will must be witnessed by at least two people or it will be invalid. Typically, this would require the physical presence of the witnesses; however, under the new rules, the witnesses will no longer have to be in the room for the Will to be valid so long as they have a ‘clear line of sight’.

The new rules are expected to last until 31 January 2022, although this timeframe could be extended or shortened depending on need.

What makes a valid Will?

The current law

For a Will to be legally valid, the law currently states that it must be:

• In writing (verbally telling somebody your wishes cannot be a valid Will)
• Signed by the testator (the person making the Will)
• Made in the presence of two or more witnesses
• Signed and/or acknowledged by each witness in the presence of the testator (but not necessarily in the presence of the other witnesses)

The testator’s chosen witnesses must:

• Not be blind
• Have ‘testamentary capacity’ – the ability to understand the Will and its effects. For  example, someone with dementia may not be able to be a witness
• Not be a beneficiary of the Will (a beneficiary is someone entitled to inherit) – this will not necessarily invalidate the Will but could make the witnesses’ gifts void

The testator must also have what is called ‘testamentary capacity’ to make a Will. This means that they understand what making a Will means, its effect, and how much money and property they own.

There are other circumstances that can affect the validity of a Will. For example, if the testator was forced into it or unduly influenced by someone else.

Under the new rules, none of the existing legal requirements for making a Will are changing. Only the clauses on witnesses are being extended.

Socially distanced witnessing

The current law states that the witnesses must have a ‘clear line of sight’ when witnessing a Will document. Typically, this means that most Wills are signed with all the participants in the same room, gathered around the same document.

Since the Covid-19/Coronavirus pandemic and the introduction of social distancing measures and restrictions on gatherings, witnessing has become trickier. Testators and their lawyers have therefore become increasingly creative to ensure that the ‘clear line of sight’ requirement is fulfilled, including:

• Signing Wills outside, for example, in a garden or over the bonnet of a car
• Witnessing through a window
• Witnessing from a separate room with the door open

The new law

The Government is planning to extend the law in September to allow witnesses to validly witness Wills via video link software such as Zoom, Skype and FaceTime. The law will be backdated to 31 January 2020 (the date of the first registered Covid-19 case in England and Wales) so any Wills made via video link before the changes will also become valid.

The type of video link software used will not matter so long as the witnesses have a ‘clear line of sight’ of the signing of the Will. This means that the video and audio quality must be sufficient and the testator needs to take active steps to ensure that the witness can see, for example:

• By holding the will document up to the camera before signing the document
• By verbally asking the witness whether they can see before signing it

Once the testator has signed the Will, it will then need to be taken to the witnesses to sign, preferably within 24 hours. The witnesses must sign the same document (rather than an identical copy of the document) via video link so the testator can see. This process will take longer than a traditional Will signing process, however, it will be the best available option for many people.

Why is the law changing?

Despite the creativity of many testators during lockdown, people who have been shielding or self-isolating have been unable to make a valid Will. Ironically, these are often people who are most interested in making a Will during this time, for example, someone who has serious health issues and is at major risk if they catch Covid-19.

The new rules will therefore enable every individual to make a Will, regardless of personal circumstances. It is a welcome change for any person who feels vulnerable during this time or for any person who just wants to make sure their affairs are in order.

The move has also been welcomed by industry experts such as Emily Deane, Technical Counsel at STEP (the Society of Trust and Estate Practitioners) who stated the law will, “provide reassurance to anyone who has had no choice but to execute a Will in this manner”.

Could a Will made over video link be challenged?

In theory, a Will made over video link could be challenged in court later on if it is alleged that it was not properly witnessed; for example, because the witnesses did not have a clear line of sight.

However, the Government has published detailed guidance on how to property execute a Will via video link, including recommending that the entire process is recorded. This recording can then be used as evidence in court if the Will is ever challenged.

Do you need help making a Will?

We have a team of dedicated Will solicitors who can talk you through the process of making a Will and draft the document on your behalf. We will ensure that your Will fully reflects your wishes and complies with all legal requirements. If you are shielding or self-isolating, we are more than happy to help by utilising video link software such as Zoom or FaceTime wherever necessary.

To get started, give us a call at your local Glanvilles office in Chichester, Fareham or Havant or fill in our online enquiry form for a quick response.