Wills Act changes allow video witnessing : a much-needed update, or risky business?

Changes to the Wills Act are set to allow video witnessing of wills in some circumstances. But while bringing the law up-to-date with today’s lifestyle is no bad thing, hastily-made changes may carry unwanted risks, says partner Simon Cook.

The core legislation for the signing of wills has been with us for some time- known as the Wills Act 1837.  There have been many calls for this legislation to be updated to reflect the modern world and developments in technology. In a world affected by COVID-19, these calls have only become more vocal.

The requirements for signing a will are set out in section 9 of the Wills Act 1837.  This says that no will shall be valid unless:

1. It is in writing, and signed by the testator (the person making the will), or by some other person in his presence and by his direction; and
2. It appears that the testator intended by his signature to give effect to the will; and
3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
4. Each witness either-
   1. attests and signs the will; or
   2. acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.

During the recent lockdown period and the ongoing need for social distancing the signing of wills has been challenging, particularly for vulnerable people. However, we have managed to deal with the signing of all wills during this period whilst following the terms of the Wills Act 1837. Yes, we have been creative at times, but we have coped.

There have been will signings in hallways, on patio tables in gardens, in car boots and through dining room windows. These have all taken place with necessary precautions such as gloves, masks and sanitiser being used.

The government announced that from last month (September 2020) the video witnessing of wills shall be allowed, with the new rules being backdated to 31 January 2020.

There are particular requirements to be followed, and the testator could end up having to make three separate video calls with one or more of his witnesses before the will is fully signed. It is also recommended that these calls are recorded so that evidence can be produced later if the signing of the will is questioned.

The consideration of the Wills Act 1837 is welcomed so as to bring the law up to date, but there is always a danger when such matters are rushed and full consideration to the changes is not given.

There are concerns about the changes; can it be certain that the testator is signing the will without any coercion or undue influence, and what happens if the testator dies before the will is signed by both witnesses?

As mentioned above we have managed to have wills signed without the need for video calls and I am confident that this will continue to be so. However, it is useful that, as a last resort, witnessing a will by way of a video call is available.

If we can help you with any of the issues discussed in this article, please get in touch.

Partner and head of the wills, trusts & probate team, Simon Cook has 25 years’ experience in the field. He is rated in independent national legal guides The Legal 500 and Chambers High Net Worth.

We’re regularly updating our website with more COVID-19 legal insights, so keep an eye on willans.co.uk/covid19 for the latest legal perspectives relating to the coronavirus.