Although this is to be welcomed, in case we have a second wave of Coronavirus, the ability to video witness Wills is not the absolute panacea it purports to be.
The reason that video witnessing of Wills has been considered by the MoJ is because for a Will to be valid normally it needs to be signed in the presence of two witnesses. However, with self‑isolation and shielding it has not always been possible for a Testator to be able to sign a Will in the presence of those witnesses and the witnesses to be able to sign the Will in a Testator’s presence. In this respect the new provision of video witnessing, which will be back dated to January when the first case of Covid arose, will be helpful. However, it is to be noted it is a provision of last resort and really should only be used where witnesses do not have access to the Testator i.e. because they are in hospital and not allowed visitors or a care home which is in lockdown.
The procedure for video witnessing of Wills is that the Testator needs to hold the Will up and show it is a Will and that they intend to sign it in the “presence” of the witnesses on the video and then sign it and then the Will needs to be sent to those witnesses and then the call reconvened so that the Testator can see the witnesses sign. It is suggested that two witnesses are picked in the same household to save the necessity of having three calls if the witnesses live in different places.
It is to be noted that if the Testator dies before the witnesses can put their physical signatures on the Will it will not be valid. The other problem is that because the Will will be posted to the witnesses they will have opportunity to read the document which they wouldn’t have the opportunity to do if a Will was witnessed in the normal way, as the Testator would not show the witness the contents. Consequently the people that you are picking as witnesses need to be trusted not to breach the Testator’s confidence and tell family members that they are being cut out of the Will or that they will benefit which could lead to more disputes. Also, there are issues with the Testator signing that someone could be stood just off camera forcing the Testator in some way to sign the Will and the witnesses will not pick this up. It is for all these reasons that we say the matter witnessing Wills in this way should be of a last resort.
Also, it is to be noted that if the Testator pre‑records their signing of the document and then forwards it to the witnesses at a later date this will not be acceptable for video witnessing. The video witnessing must occur while the Testator signs the document.
Although we are welcoming this change which will assist with people in hospital or care homes, it has been possible during Covid to witness Wills in a more conventional way. Although witnesses need to see the Testator sign they can do this through a window or across the bonnet of a car so maintaining social distancing and this is the way that most Wills have been witnessed. None of this changes under the new proposed legislation.
It has been suggested that to make the video witnessing more secure that a solicitor and a member of his or her staff could have a video conference with the client and the solicitor could sign the Will at the Testator’s direction. This has been rejected by the Ministry of Justice as being too open to abuse but, again, if the solicitor can establish some line of sight with the Testator and be in their physical presence, even at a good social distance, it is possible for a Will to be signed at the direction of the Testator, if speed is of the essence.
For further help or advice, please do not hesitate to contact Private Client Senior Associate, Amanda Simmonds, on 0113 2802131 or firstname.lastname@example.org
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.