What’s changed with Wills?
In order for a Will to be valid, the person making the Will (known as the testator) has to sign the Will in the presence of two or more witnesses, who also sign it.
If the testator is not able to sign the Will themselves, they appoint someone else to sign it for them.
The important thing to note is that all the relevant people are supposed to be in the same place at the same time to do the signing and witnessing.
Because the pandemic makes it difficult for groups to travel and meet in person, the Government has introduced new legislation: ‘The Wills Act 1827 (Electronic Communications) (Amendment) (Coronavirus) Order 2020’. In this article, we’ll call it the Order, for short.
The Order allows Wills to be signed and witnessed via video.
Instead of requiring testators and witnesses to be physically present, they can be visually present while signing is done during a series of live video calls.
The Order covers the period from 31 January 2020 to 31 January 2021, and is due to come into force on 29 September 2020.
What this means to you
The good news is that the Order protects anyone who is shielding or in self-isolation, as they won’t have to be in physical proximity with other people.
The downside is that not everyone has access to video-calling technology, as it depends on having a computer or smartphone with internet access and a web cam, as well as familiarity with the relevant software.
As legal advisers, there are also other concerns.
We have to be confident that the testator isn’t under any undue influence when they sign the Will. On a video call, we would want to know if anyone else is in the room, off-camera. To do that, we might ask direct questions or request a video tour. However, even that doesn’t guarantee that the Will isn’t being signed under duress.
If there are third parties in the room and the testator hasn’t consented to their presence, it potentially undermines the confidentiality of the Will.
There’s also a risk if the testator or their witnesses use a device that’s unknowingly been hacked to include masking technology malware – this would covertly monitor their activities, putting them at risk of identity theft and meaning that the details of the Will could be shared with spammers and other criminals.
Need to sign or witness a Will via video link?
Here’s what you need to know:
• The Will must be signed during ‘live’ video calls, not pre-recorded
• We recommend that the live video calls are recorded, and you keep a copy of the recordings
• The testator and both witnesses must all sign the original Will, not a copy or counterpart
Video call 1: Signing by the testator
• The witnesses should confirm they can see and hear the testator clearly, and that they understand their role in witnessing the signing of a Will
• If either of the witnesses don’t know the testator, the testator should confirm their identity by showing photo ID to the camera (such as their passport or driving licence)
• The testator should hold the Will up to the camera, showing the witnesses the front page, then the signature page
• The testator should sign the Will, ensuring that the witnesses can watch them signing (this will probably mean moving the camera angle)
The Will should then be delivered to the first witness to sign.
Video call 2: Signing by the first witness
• Again, ensure the testator and both witnesses can see and hear each other clearly
• Witness 1 should adjust their camera so the testator and second witness can watch them sign the Will
The Will should then be delivered to the second witness to sign.
Video call 3: Signing by the second witness
• Once more, ensure the testator and both witnesses can see and hear each other clearly
• Witness 2 should adjust their camera so the testator and first witness can watch them sign the Will
Ideally, all three people should sign the Will within 24 hours. The longer the time period between the three signatures, the greater potential there is for issues to arise.
Once the testator and both witnesses have signed the Will, it becomes a valid legal document that should be kept safely.
If you need help with any of this, please give us a call.
This links to our recent article Tempted to save money on your Will?