25th August, 2020
Can I arrange for my Will to be witnessed by video and are there any risks?
In light of the ongoing COVID-19 pandemic and difficulties encountered by some people making a will, the Government is introducing a temporary change to the law in September to allow people to use video conference technology when witnessing a will.
Currently, the Wills Act 1837 stipulates that wills must be signed in the physical presence of at least two witnesses. The new law will provide for this presence to be either physical or virtual; but virtual witnessing shall be subject to strict rules and electronic signatures will not be permitted.
Although helpful as a last resort for those shielding and self-isolating, the rigidity of the rules for virtually witnessing a will pose several risks.
1. The will is only valid and legal once all wet signatures have been obtained to the one document. This raises issues for how the will is to be transported between the testator and witnesses, particularly for those who are self-isolating or vulnerable. This also creates a delay to the will being validated. The will could to be lost or intercepted whilst in transit or the testator could die during the delay.
2. Each witness must sign the will by a live video link (not a pre-recording), such as Skype or Zoom, in the presence of the testator. As such, the need to repeat the signing process up to three times by multiple video conferences is time consuming, prone to procedural defects and technical difficulties that could lead to complications with the validity of the will. Current government guidance recommends that the video conferences are recorded and stored with the will to evidence the procedure, but questions remain about future incompatibility of the video format.
3. Virtual witnessing also brings opportunities for allegations of manipulation, fraud and abuse. It is not possible in a virtual environment to be sure that the testator is alone and signing their will of their own volition free from any pressure which may be applied by others who remain off-camera.
These risks create opportunities for ambiguity and could inevitably result in an increase to disputes and challenges after the testator has died, and the evidence of remote witnesses might not be as convincing as it would have been in person.
Government guidance makes clear that the traditional method of physically witnessing of wills, which are completed and valid immediately, should continue where it is possible and safe to do so.
Wills, Trusts and Tax
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