July 31st, 2020 / Insight posted in Articles

Witnessing a Will via video call: a last resort in every respect

The government has confirmed that it will pass legislation that validates Wills witnessed since 31 January 2020 via video call, such as Zoom or WhatsApp.  The new measures will remain in place until 31 January 2022, or for as long as it feels appropriate. However, this is not an option open to everyone and the government has said that Wills should only be witnessed remotely as a last resort. This is certainly true from a legal perspective because being physically present with the testator when signing their Will is one of the most effective ways of preventing fraud or undue influence.

Given the logistical difficulties of closely following the government’s guidelines, remote witnessing should also be considered a last resort from a practical perspective. Anyone seeking to challenge the validity of a Will is likely to find fertile ground to do so given the stringency of the new guidelines.

The first hurdle to overcome is the technology itself. The guidelines say that the witnesses must be able to clearly see and hear the testator. This means that if an unreliable broadband connection makes the connection unstable, the process could be called into question. The video must also be recorded and that recording should be retained.

The witnesses must see the testator signing the Will. If the video shows the testator’s head and shoulders only, the criteria for a validly signed Will have not been met and the Will can be challenged. The guidelines also make it clear that the witnesses must understand that the document being signed is a Will and suggests that the testator holds up the Will to the camera and reads the following prescribed wording:

‘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.’

The Will can only be valid if the witnesses sign the same document as the testator and the guidelines suggest that this is done within 24 hours of the testator signing. This clearly presents logistical challenges, especially if the two witnesses are not physically together. The testator should also see the witnesses signing the Will, meaning that the video link needs to be made each time a witness signs the Will so that the testator can see them doing so.

Having a Will witnessed via video may be the only way to complete a Will at a time of shielding and social distancing. However, the logistical challenges outlined above and the scope for a Will to be challenged if they are not followed to the letter mean video witnessing should always be considered a last resort, rather than merely a convenience.

An alternative approach that the government could have chosen but has not done so would have been to make it compulsory for a solicitor or suitable professional to supervise the proceedings and to allow the testator and witnesses to sign the Will in counterpart. A recording of these proceedings in which the solicitor assesses the conditions in which the documents are signed and confirms that the documents being signed are the testator’s Will would provide better protection than where no solicitor is involved. It could have also negated the requirement to send the same document between the testator and the witnesses and the risk of the testator dying before the witnesses have signed the Will.