A cautious welcome for remote video witnessing for Wills

The Ministry of Justice has announced that it will allow Wills to be witnessed remotely by video for the next two years in response to the Covid-19 pandemic.

For a Will to be valid it must be signed in the presence of two witnesses. It means that three people must be physically present to sign the document; the Will maker and the two witnesses.

The Covid-19 pandemic has made this difficult because of local lockdown restrictions and social distancing rules. Solicitors have had to be creative to get around the challenge of all three people being present and able to see each other sign the Will. During the pandemic our Private Client Team has been witnessing Wills with neighbours over the garden wall, at the end of driveways and through windows while standing in glorious sunshine and pouring rain.

Will maker’s signatures to be witnessed using video conferencing

Last month (September), a statutory instrument allows Wills to be witnessed ‘remotely’ in England and Wales. The new rules will be backdated to January 31, 2020 to cover the pandemic period. This will allow the Will maker’s signatures to be witnessed using video conferencing software, such as Zoom, Facetime, Microsoft Teams and Skype.

Undue influence on the Will maker

Concerns have been raised that the new laws could risk abuse and fraud. Certainly there is risk that a person could exert undue influence on the Will maker while off-camera. Laptop, tablet and phone cameras cannot cover every corner of the room.

There have also been warnings that video witnessed Wills could be lost or intercepted in the post as the document will have to be sent to each of the two witnesses, or the Will maker could die before the document is signed and witnessed.

These are all considerations our Team will take into account when talking to our clients and assessing the best way to work with them. The change to the law does bring us into line with Scotland and it could help ease some of the challenges that our clients have faced while making a Will during the pandemic.

Prioritise the client’s best interests

Video remote witnessing has not been necessary for us because we have continued to support the witnessing of Wills during lockdown by making many home visits to witness clients signing from a safe distance with appropriate safety measures.

We will continue to recommend a physical presence at a social distance with appropriate safety measures for the signing of Wills. But we are open to new systems as long as we can continue to prioritise our client’s best interests. If that means a client’s circumstances requires video witnessing then we are technically ready to assist.