New legislation for video witnessing of Wills

Recent changes in the law mean that it is now possible for a Will witnessed by video technology to be legally valid. Under section 9 of the Wills Act 1837 a will must be signed by the testator ‘in the presence of’ two witnesses. New legislation, which came into force on 28 September, extends the definition of ‘in the presence of’ to include ‘video conferencing or other visual transmission’.

These new rules will be backdated to 31 January 2020 and kept in place until 31 January 2022. This period can be shortened or extended by the government if deemed necessary.

The government has issued detailed guidance about video witnessing and has set out a suggested process to be followed for signing a will via video link.

This change to the law has been introduced as a way of making it easier for Wills to be made during the current pandemic. However, video witnessing is not without its risks and complications, for example:
  • Undue influence – there is no way of knowing with video witnessing who else is in the house or even in the room with the testator as individuals could be hidden off camera.
  • Long term storage of recording – the guidance encourages people to record the signing and witnessing of the Will but where should this recording be stored and will it be possible to access the recording in the future?
  • If the testator is self-isolating, how do they get the signed Will to the witnesses? If the testator is leaving the house to post the will, it may be easier to simply arrange for some witnesses to witness the document outside. If someone is collecting the will to deliver to the witnesses, perhaps two people could attend the property and instead witness through a window or open door?
  • Risk of documents going missing in the post - a Will is only valid once it is signed by the testator and both witnesses. If the document is lost in the post before being signed by both witnesses it will need to be resigned.
  • If there is a delay between the testator and the witnesses signing, there is a risk that the testator could die before the Will is completed.
  • There is a potential risk of fraud. If a third party posts or delivers the document, there is a risk they may replace the Will or replace certain pages.
  • The whole procedure is quite complicated. Although at first glance video witnessing offers a way for a person to make a Will without leaving their own home, the other requirements of s.9 Wills Act 1837 still need to be complied with. Many people will not realise the importance of both witnesses being present when the testator signs and may not realise that they need to have a second and third video call so that the testator can see the witnesses sign the will. If the complex procedure is not followed, the will could quite easily be invalid without the testator even realising.

Given the risks associated with video witnessing, we would recommend that other options should be explored before relying on it. There are numerous other ways in which Wills can be witnessed without relying on a video link, such as witnessing through a window or from another room. If video witnessing is used the guidance should be followed carefully.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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