Common sense would suggest that there will probably be a spike in contentious probate disputes following the COVID-19 pandemic, due to the higher numbers of deaths than usual. Research suggests that, in light of the Government’s social distancing rules, many people may have written a Will and had it witnessed ‘remotely’.
Section 9 of the Wills Act 1837 requires Wills to be signed in the presence of two or more witnesses. These witnesses then countersign the Will to confirm that they saw the main signatory (the person who is making the Will) signing it.
But what if they saw the will being signed via a videoconferencing software such as Skype or Zoom, and then signed a scanned copy of the document, or even a paper copy they subsequently received by post?
Change in Legislation for Witnessing a Will
Many people would assume that this should be acceptable, particularly as many of those who passed away may have tragically come to their deaths prematurely and/or without family members close by them. However, until late July 2020, it seemed that pursuant to the 1837 Act, Wills must not be witnessed via video link.
That is about to change as Wills witnessed over Zoom and Skype are to be legalised.
Following this change, the persons witnessing the Will being signed will no longer be required to countersign it to confirm that they were physically present with the person making the Will.
The relevant change in the law, via a temporary statutory instrument, will be backdated to 31 January 2020 (the date of the UK’s first coronavirus case). Therefore, any Will witnessed via video technology from that date will be legally acceptable, providing the quality of the sound and video are sufficient to see and hear what was happening at the time.
In addition, once the testator has signed the Will, it must be sent to the witnesses for signature (ideally within 24 hours), as if the Will is not signed, it will be invalid.
While this is an entirely understandable step by the Ministry, some commentators have suggested that it could lead to an increase in disputes arising after a testator’s death. One obvious problem is that, if they are not in the physical proximity of the testator, the witnesses will not know who else is present but out of shot. This could make it easier for persons to be unduly influenced into making a Will.
Even if such undue influence is not in reality a widespread problem, the potential beneficiaries might still have concerns about it, which could lead to a greater number of disputes.
From a practical perspective, perhaps the main signatory could:
- ensure the video conference is being recorded; and
- pan the camera around the room before the signing of the Will takes place
This may help, but might not work in all cases because the signatory might not be able to physically manoeuvre the camera for a variety of reasons, including their physical dexterity or the camera being fixed to a desktop monitor. It is far from perfect, but following these steps might help alleviate potential future concerns.
Overall, if you or a loved one are making a Will during lockdown, it might still be sensible to have it signed and witnessed in person, but only if you can adhere to the applicable social distancing guidelines. Realistically, witnessing a testator’s signature through a clear window or doorway, or in a garden will be entirely acceptable.
In circumstances where Wills cannot be properly witnessed at all, then other options for testators include making lifetime (death bed) gifts and/or preparing a letter of wishes which, although not legally binding (and therefore not recommended), might be expected to be followed by the family after death.
So as to the question posed above: ‘Can lockdown I witness a Will through video?’, the answer is now ‘Yes’.