On 6 November, the Law Society published new guidance explaining how the temporary amendment to the Wills Act 1837, which permits video-witnessing of Wills, should be implemented in practice.
The guidance makes it clear from the outset that video-witnessing must be a real time process, performed through what it calls a “live-action video-link”. A witness cannot rely on viewing a recording of the testator or testatrix (the person making the Will) doing the signing.
The guidance provides a scenario where video-witnessing may be appropriate. For example, it may be necessary if the testator is in hospital isolation and medical staff are unable or unwilling to act as witnesses. Use of video-witnessing would need to be weighed against the urgency of executing the Will, such as if the testator is seriously ill in a COVID-19 isolation ward.
Transporting the physical Will between the testator and the witnesses provides an acute challenge, especially with the risk of disease transmission on the document itself. The Law Society does not address this directly, but recommends that the difference in time between the testator and the witnesses signing should ideally be less than 24 hours and that the document should not be posted. Plans would need to be drawn up in advance to govern the logistics of transporting the Will safely and where the video recording is stored.
The government continues to recommend that Wills should be witnessed in person where possible. Furthermore, the Law Society echoes practitioners’ calls that video-witnessing should be a last resort. The high likelihood that challenges will be raised against the validity of video-witnessed Wills may mean that they are uncommon in practice.