Witnessing wills during the Coronavirus pandemic - Video Witnessing Update

In normal circumstances we strongly recommend a client making a will (“the Testator”) attends the office initially to take will instructions and again to execute their will and have their will witnessed by two members of staff. 

Given the current circumstances we have been taking will instructions via telephone or video meetings.  However, as we are not able to meet with the Testator in the usual way to act as witnesses we are increasing being asked to post the will out to the Testator to execute at home. 

This does not, however, resolve the issue with regard to witnesses and has led to increased queries on how the Testator executes their will in the presence of two independent adult witnesses (who must be over the age of 18, not benefit from the will or be a spouse or civil partner of anyone who may benefit from the will). 

The legislation is being updated to adapt to the current circumstances allowing wills and Codicils to be witnessed by video conferencing.  A large leap forward but, beware, the process to be followed is not simple!

Conventional will Execution

Conventionally, in order to validly execute a written will the Testator and the two independent adult witnesses must all be physically present at the same time with the witnesses first seeing the Testator sign the will and with the Testator then seeing the witnesses sign the will (s.9 wills Act 1837).  This, of course, has caused substantial issues in lockdown!

There is case law from 1781(!), Casson v Dade, which confirms witnessing a will through a window is sufficient provided there is an unobstructed line of sight.  As such, the Testator signing their will in front of a window with two independent adult witnesses on the other side of the window who watch the Testator sign the will with a clear and unobstructed view before the Testator posts the will through the window for the two independent adult witnesses to sign whilst the Testator watches satisfies the requirements for valid execution of a will.

Witnessing wills by Video Conferencing

The Wills Act 1837 is being amended to allow for witnessing via video conference but there is a complex process, set out below, which needs to be followed to ensure the will is validly executed. 

Based on current guidance this amendment will apply to wills and Codicils executed between 31st January 2020 and 31st January 2022 (although this is, of course, subject to change!).  However, where the Testator has died and either 1) a Grant has already been obtained in that person’s estate or 2) the application is already being administered the amendment will not have an impact. 

In order for a will to be validly executed by video conference the Testator and each witness must still have an unobstructed line of sight, as mentioned above, and the witnessing must be done in real time.  As such a pre-recorded video of the Testator signing the will is not adequate for the purposes of witnessing.  It is strongly recommended that each part of the execution process is recorded and those recording are retained to assist with future challenges.  It is also important to note electronic signatures will not constitute a valid will so the physical will must still be provided to the Testator and witnesses for them to execute!

The Ministry of Justice has recommended the following five stage process for executing wills via video conferencing: -

1. Testator’s signature

• The Testator ensures that their two independent adult witnesses can see them, each other and their actions and one of them asks for the making of the will to be recorded. 
• The Testator states “I [full name] wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely”.
• The Testator holds the front page of the will up to the camera to show the witnesses, and then turns to the page they will be signing and holds this up as well (along with each subsequent page being signed).
• The Testator must ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders whilst they are doing so.  This process needs to be followed for each page the Testator needs to sign.  
• It is also recommended that if the witnesses do not know the person making the will they should ask for confirmation of the person’s identity such as sight of a passport or driving licence.

2. The witnesses should each confirm they can see and hear (provided they can) and acknowledge and understand their role in witnessing the signing of the will.  

If at all possible, the two witnesses should be physically present with each other otherwise, they must be present at the same time by way of a two or three-way video conference.

3. The will should then be taken to the two witnesses for them to sign, preferably within 24 hours (the longer the time period the larger the chance issues will arise).  A will is only valid when the Testator and both witnesses have signed it.

All parties must sign the same will document, counterparts will not be accepted!

4. Witnesses signatures

• Each witness should hold the front page of the will up to the camera to show the Testator, and then turn to the page they will be signing and hold this up as well (along with each subsequent page being signed).
• Each witness must ensure that the Testator can see them actually writing their signature on the will, not just their head and shoulders whilst they are doing so.  This process needs to be followed for each page the witness needs to sign.  Alternatively, the witness should hold up each signed page of the will so that the Testator can clearly see the signature and confirm to the Testator that it is their signature.  
• It is strongly recommended this session is also recorded and retained.
• It is crucially important both the witness and the Testator see and understand what is happening.

5. If the two witnesses are not physically present with each other when they sign then step 4 will need to take place twice, in both cases ensuring that the Testator can clearly see and follow what is happening.  

It is not a legal requirement for the two witnesses to sign in the presence of each other but it is good practice and the attestation clause to the will may need to be amended if the witnesses are not going to sign in the presence of each other.

Whilst wills can now be executed by video conferencing the guidance is clear that wills should be witnessed in the conventional way where it is safe to do so.  This is the case for a number of reasons but no doubt also due to the convoluted nature of the execution process for video witnessing which could easily catch some individuals out and render the will invalid. 

Proceed with extreme caution when witnessing a will via video conference!