The legislation recognises that:
The legislation will apply to wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales, except:
The legislation will apply to wills made up to two years from when the legislation comes into force (so until 31 January 2022), however this can be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures. The advice remains that where people can make wills in the conventional way they should continue to do so.
When the new law ceases to be in force, people will only be able to make new legal wills using the normal methods.
The legislation applies to codicils (documents that formally modify or amend an original will). Codicils must satisfy the same signing and witnessing rules that are involved in the making of a will.
This guidance reflects both requirements and suggested best practice:
The legislation ruling the making of wills in England and Wales is the Wills Act 1837
None of the existing relevant requirements are changed by the new law.
Section 9 of the Act sets out the requirements for making and witnessing a will as follows, and these requirements remain in force:
No will shall be valid unless -
(a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.
The law also includes a number of other requirements. For example, that the person making the will ‘has testamentary capacity’ - that they know fully what they are doing and are able to express their intentions - and that they are not being unduly influenced by anyone.
For witnesses, the current law allows an executor to the will to be a witness but a beneficiary from the will (or their spouse/civil partner) cannot be a witness without the gift to them becoming void. ‘Mature minors’ are allowed to witness a will, but blind people cannot. There is a general assumption that a witness should have testamentary capacity.
In the existing law a witness must have a ‘clear line of sight’ of the will-maker signing and understands that they are witnessing and acknowledging the signing of the document, for example if self-isolation or social distancing have prevented the signing and witnessing of a will by people in the same room.
The person making the will must have a clear line of sight of the witnesses signing the will to confirm they have witnessed the will-maker’s signature (or someone signing on their behalf and at their direction).
The following scenarios would lead to a properly executed will during the pandemic within the existing law, provided that the will maker and the witnesses each have a clear line of sight:
In the new law, all of the legislation set out above applies where a will is video-witnessed.
The type of video-conferencing or device used is not important, as long as the person making the will and their two witnesses each have a clear line of sight of the writing of the signature.
To reflect this, the will-maker could use the following example phrase:
‘I first name, surname, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’.
Witnessing pre-recorded videos will not be permissible - the witnesses must see the will being signed in real-time. The person making the will must be acting with capacity and in the absence of undue influence. If possible, the whole video-signing and witnessing process should be recorded and the recording retained. This may assist a court in the event of a will being challenged - both in terms of whether the will was made in a legally valid way, but also to try and detect any indications of undue influence, fraud or lack of capacity.
The following scenarios illustrate circumstances in which video-witnessing might be appropriately used:
the testator (T) is alone and witness one (W1) is physically present with witness two (W2). Together, W1 and W2 are on a two-way live-action video-conferencing link with T
T, W1 and W2 are all alone in separate locations and are connected by a three-way live-action video-conferencing link.
T is physically present with W1, and they are connected to W2 by a two-way live-action video-conferencing link.
T is physically present with a person signing the will on their behalf (and at their direction), and connected to W1 and W2 by two or three-way live-action video-conferencing (depending on whether W1 and W2 are in the same or separate locations)
Signing and witnessing by video-link should follow a process such as this:
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. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.
The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign.
Consideration may be given to the drafting or amending of the attestation clause in a will where video-witnessing is used. The attestation clause is the part of the will that deals with the witnessing of the will makers signature. For video-witnessed wills it may be advisable to mention that virtual witnessing has occurred, along with details of whether a recording is available.
If you have any questions about this process you are advised to consult a solicitor or will-making professional.
Professional bodies, such as the Law Society and STEP, are expected to be issuing their own guidance to their members on this process, and any such material should be read alongside this guidance.
The Government has decided not to allow electronic signatures as part of this temporary legislation due to the risks of undue influence or fraud against the person making the will. These risks were identified by the Law Commission in its 2017 consultation paper on wills. The Law Commission is undertaking a law reform project which will include consideration of the possibility of allowing electronic wills in the future.
The term ‘counterpart documents’ refers to when two copies of the will are prepared, and while the will maker signs one document, the witnesses sign another copy of the same document. The two counterpart documents between them constitute one valid will.
The Government has decided against introducing counterpart wills as part of this temporary legislation. Although some authorities have adopted this reform to complement video-witnessing, the Government has decided against allowing it in England and Wales in the belief that the risks outweigh the benefits at this stage. Such risks include there being different versions of the will (with different contents), the witness signing the wrong document, and an increase in the risk of undue influence and fraud.
Here is a link to the Government Website for this article/update: https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing