There are strict legal requirements that must be observed when a Will is being signed and witnessed. These were set out in legislation as long ago as 1837. In simple terms the requirements are as follows:-
To be valid a Will must:
- be in writing and signed by the Testator or by some other person in his presence and by his direction.
- it must be apparent that the Testator intended by his signature to give effect to the Will.
- the Testator’s signature is made in the presence of two or more witnesses who must be present at the same time.
- each witness must sign the Will or acknowledge his signature in the presence of the Testator.
Witnesses can be named as Executors in the Will but must not be beneficiaries or their spouses/civil partners.
These strict requirements have caused difficulties during the Covid pandemic, particularly for people who are shielding or in hospital.
As a result, legislation is to be introduced so that the reference to “in the presence of” includes virtual presence, via video link.
The new legislation will apply to Wills made since 31 January 2020 (subject to certain exceptions relating to where a Grant of Probate is being applied for). It will apply for a two year period until 31 January 2022, although this period can be shortened or extended, if it is felt necessary to do so.
Electronic signatures will still not be allowed and the Testator and witnesses must all sign the same document, ideally within 24 hours (although a longer period will be valid, for example if the document has to be sent to the witnesses by post).
The type of video conferencing device is not important, but the person making the Will and the two witnesses must all have a clear line of sight of the writing of the signature. Ideally the process should be recorded.
The advice remains that if it is possible to execute the Will in the traditional way, then this should be done.
The requirements surrounding the actual witnessing are detailed and legal advice should be sought if there are any concerns about the way in which the video witnessing should be done. Please contact a member of our Private Client team for more information and advice.