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The government announced on 25th
July that it would introduce secondary legislation from September to allow for the witnessing of wills by video link. The rules will be back dated to 31st
January 2020 and will remain in force until 31 January 2022.
However, there is power to extend or shorten this period. We reported on 10th
July about speculation that such a measure was being considered.
The draft legislation is not yet available only guidance on the gov.uk website
, so it is difficult to advise on the precise terms of the legislation.
It is important to note that all the other rules around the signing of wills remain in force. There must still be two witnesses who are not mentioned in the will or married to anyone mentioned in the will and the testator (the person whose will it is) and the witnesses must all place their signatures on the same document. This means that there must be some way of passing the physical document from the testator to the witnesses which may be difficult for someone who is genuinely self isolating.
Another problem with the requirement that the testator and witnesses all sign the same document is that the will will not be valid until both witnesses have signed it. There is a risk that the testator could die before one or both witnesses have signed.
It is possible that despite the retrospective effect of the legislation not all the wills that have been signed via video link will be valid because they may not have complied with the new requirements. In particular witnessing pre-recorded will signings will not be permitted. The witnesses must see the testator sign in real time and that means they must see the testator’s pen touch the paper of the will.
A surprising aspect of the guidance is that there is no requirement to keep a recording of the virtual will signing meeting. However, if there is any dispute about the will signing at a later date the best way of resolving it will be to have a recording showing that the rules were complied with.
In the light of all of this our advice is for clients to continue to sign in the presence of two witnesses under the existing rules. These witnesses have to be able to see the testator sign, which means they do not necessarily have to be in the same room. They could be in the garden watching through a window as the testator signs. One big advantage of this is that you know the will will be valid immediately it has been signed by the two witnesses.
For more information on the items raised in this article please contact a member of the Private Wealth Team