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The Ministry of Justice (MoJ) has officially declared that Wills and Codicils witnessed remotely by video link will be deemed legal, as long as the quality of the sound and video is sufficient for the parties to see and hear what is happening at the time. This is to make it easier for people who are isolating to record their final wishes during the Covid-19 pandemic. In the middle of lockdown, large numbers of people had difficulty in finding witnesses to their Wills. Those in complete isolation who were shielding were often unable to complete Wills as a result. Hospital and care home staff are often not allowed to act as witnesses to Wills.
The existing law on Wills, set out in the Wills Act 1837, is to be amended so that the ‘presence’ of those making and witnessing Wills includes a virtual presence, via video link, as an alternative to physical presence. A statutory instrument to this effect, under the Electronic Communications Act 2000, will be brought into force on 28 September 2020.
The change to the law will be backdated to 31 January 2020 to remove doubts over Wills which have already been witnessed remotely by video. This change will remain in place until January 2022, but the MoJ has said this time period could be shortened or extended if deemed necessary. After this period ends, Wills must return to being made with witnesses who are physically present.
Remote witnessing is not without its requirements. Strict precautions must be taken to deter fraud or undue influence. The witness must understand that they are witnessing and acknowledging the signing of the document. It will not be permissible to witness a pre-recorded video of a signing. Signatures must be 'wet' and remote electronic signing will not be allowed. The entire process should be recorded, if possible, and the recording retained. The MoJ recommends that testators should make a formal statement at the start of the recording, for example “I, first name, surname, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely.” It is also advisable that witnesses clearly identify themselves on the recording to avoid any questions over their identity.
It is also important to note that this change in the law will not apply in cases where probate has already been issued in respect of the deceased, or where the probate application is already in the process of being administered.
The Government has issued guidance on making Wills via video conferencing in the following link: https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing
The MoJ has advised that remote witnessing via video link should only be used as a last resort when physical presence of witnesses is impossible, and we agree with this advice. People should still continue to arrange for their Wills to be witnessed in the conventional way wherever possible and if it is safe to do so.
If you need further guidance on remote witnessing of a Will or you would like some advice or assistance on preparing your Will, you can contact a member of our Private Client Department on 01242 574 244 or at cxf@hughes-paddison.co.uk.