Other countries, including the USA, have already passed emergency legislation to make it easier for Wills to be made whilst social distancing is in place. Now, following a review, the Government is to follow suit.
Under existing law, the witnesses to your Will are required to be physically present with you when you sign your Will, ideally in the same room, but absolutely within a clear line of sight. So, witnessing through a window works as long as your witnesses maintain an uninterrupted view of you signing your Will. Likewise, you should have an uninterrupted view of your witnesses attesting (recording in writing) that they have seen you sign your Will. The risk of not doing this correctly is to make an invalid Will.
The new revision to the Wills Act will remove the requirement for there to be physical presence between you and your witnesses by specifically permitting live video-conferencing lines of sight to be established. For those who are self-isolating, shielding or in quarantine having returned from overseas, this may prove helpful in enabling them to sign their Will where their witnesses are in a different location.
However, there will be various pitfalls to be careful of, judging by the Government's guidance which has been published ahead of Parliament considering the detailed legislative changes due in September 2020.
Just a few examples of how a Will made on Zoom or other video-conference platforms could fail or present difficulties are:
The Government says the amendment permitting video-conference Wills is to be made in September 2020. However, when made, it will have retrospective effect. So any Will (which has not already been admitted to probate) which has been made this way since 31 January 2020, (the date of the first recorded case of COVID-19 in England and Wales), will be valid if compliant with the legislation.
Given that the guidance has only just been published, and the legislation has not yet been finalised, the validity of a Will may be hard to establish in many cases. This could lead to an increase in disputed Wills made between 31 January and now - and beyond that, if a Will fails to comply with the legislative requirements when they come into force.
No. This amendment is temporary and should not be considered to be a permanent addition or amendment to the existing law, which requires the physical presence of your witnesses with you to make your Will. Currently, we can expect that Wills can be made by video-conference until 31 January 2022, although this date could be shortened or lengthened.
The Government's advice, which we echo, is that Wills should be made in accordance with the law as it currently stands wherever possible, ie with the physical presence of both witnesses and without the use of video-conferencing. Our top tips for how to safely make a Will in the conventional way during the pandemic can be viewed here.
However, in those cases where video-conferencing may be the most convenient or the only way to make a Will, this new amendment to the law may be welcome.
Our Private Client team can guide you through the Will-drafting process, ensuring you make a valid Will in the best method for you.