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Witness a will, By Iftekhar Shah, Head of Private Client

In response to the coronavirus pandemic, the Government has legalised video-witnessing of Wills and codicils in England and Wales.

This major change was prompted by the practical issues around witnessing a Will in person to make it easier for people to record their final wishes while shielding or observing social distancing measures.

Updated Government Legislation

The Ministry of Justice (MoJ) have changed the 183-year-old rules which determine how Wills are made in England and Wales. It is, however, a temporary amendment to the Wills Act 1837, allowing video witnessed wills during the coronavirus pandemic to be deemed legal. The video must be clear enough to see and hear exactly what is happening and there must be at least two witnesses that are not named beneficiaries.

When Does the New Legislation Come into Force?

This new policy was implemented in September 2020 however it will be backdated to 30 January 2020. They will continue in force until 30 January 2022, or as long as is considered necessary.

What the Government Says

The MoJ has confirmed that Wills should still be witnessed in person wherever possible and that video witnessing must remain a last resort. When being witnessed in person, they can be legally done at a safe distance as long as everyone has a clear line of sight. This could be done through a window, in a garden or a separate room through an open door. All the existing legislation still stands and the witnesses themselves must be over 18 and must not benefit from or be married to anyone who benefits under the Will.

Guidance

There is new guidance giving further details on the requirements for making a legally binding Will in this way:
  • A bespoke attestation clause should be included in the Will, stating that it is to be witnessed virtually
  • A live video link (not pre-recorded video) must be used
  • The camera angle must allow the witnesses to see the testator to identify them, to see that the document being signed is a Will and to see the moment of signing. This also applies to the testator seeing the witness.
  • Once the testator has signed, the original Will must be taken or sent to the witnesses to sign.
  • Each video call should ideally be recorded, with the parties present confirming orally that they can see and understand what is happening
  • The Will should ideally be physically signed by all parties within 24 hours and won’t be valid until done so.

How to Get Your Will Video-Witnessed

You may use any good quality and reliable video conferencing software for this purpose. It is also recommended that the signing and witnessing of the Will is recorded as evidence in case the Will is challenged in the future. We strongly advise that professional advice is always taken when putting a Will in place, especially where the new rules may need to be relied upon. An invalidly executed Will increases the difficulties families face when dealing with the estate of a relative and can lead to litigation, intervention from the courts and wasted time and money trying to resolve issues. Our specialist Will solicitors are experts and can guide you through the process to ensure all procedures are followed and the Will is legally valid and free from errors.

Who can Video-Witness a Will?

All the existing legislation still stands and the witnesses themselves must be over 18, they must not benefit from or be married to anyone who benefits under the Will and they must be able to fully understand what they are witnessing. We can provide practical guidance on how to execute a Will while observing social distancing measures.

In light of the novel Covid-19 (coronavirus) outbreak, demand for will writing has continuously increased. People are concerned about the future and want to make sure their estate is in order in case anything were to happen to them.

However, due to the government guidelines, particularly the ruling on social distancing, Private Client Solicitors have had to change the way they provide will writing services.

The Law Society has declared Solicitors acting in connection with the execution of wills as essential workers; thus, alternative arrangements must be made to overcome the limitations of the Covid-19 pandemic.

For a Will to be valid, it must meet all the requirements listed in section 9 of the wills Act 1837. The act states that no will shall be valid unless: -

  1. it is in writing; it is signed by the Testator (person making the will), or by some other person in their presence and by their direction; and
  2. that the Testator intended to give effect to the will and
  3. the signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
  4. each witness either –
    1. (i) attests and signs the will; or
    2. (ii) acknowledges their signature in the presence of the Testator.

These requirements mean that for a will to be valid, all three people involved (The Testator and witnesses) must be in the same room at the same time to witness each signature. However, due to social distancing and self-isolation guidelines, it is not practical or safe for Solicitors and clients to witness wills as they usually would.

Overcoming social distancing for will writing

To overcome such obstacles and ensure compliance with the formalities of the Wills Act, Private Client Solicitors have adopted certain measures. These measures include:

Notwithstanding the Coronavirus outbreak and policies on social distancing, other means can be used to ensure that a will is validly drafted and executed.

Although we, Deo Volente Solicitors, have suspended all face to face appointments until further notice, we have adopted alternative methods of communication such as telephone consultations, emails, letters and video calls.

At Deo Volente Solicitors, we will take instructions on your will by telephone consultation or email. We will also offer a ‘window service’ to ensure that your will is correctly drafted and executed without compromising your safety and wellbeing. We will always put the best interests of our clients above everything else.

Please rest assured that we are still taking instructions, preparing and executing wills despite the Coronavirus outbreak. We also offer urgent same day wills to provide you and your families with certainty and comfort. As probate registries are still open, we can still provide our probate services to clients in need.

In these unprecedented times, our experienced and friendly Private Client team can guide you in ensuring that your loved ones do not have to worry about what to do. If you require any advice or assistance on wills and probate, please call us on 01234 350244 for a free telephone consultation today.

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