Remote Witnessing of Wills Extended
When the first lockdown began in March 2020 the execution of Wills became problematic.
Fears about mortality in the light of the pandemic meant that large numbers of people decided it was time to put their affairs in order, in case they succumbed to coronavirus. At the same time, actually meeting anyone, outside of your immediate family, was not possible, and so the question of how to sign a Will validly became pressing.
Section 9 of the Wills Act 1837 provides that, in order to be validly executed a Will must be signed by the testator "in the presence of two or more witnesses present at the same time".
Given that a Will should not be witnessed by anyone who is a beneficiary under it, close family members were out and Private Client lawyers turned to old case law, in particular the 1781 case of Casson v Dade in an attempt to find ways around the problem. In Casson v Dade it was found that a Will was valid when the testator, sitting in her carriage outside her solicitor’s office, could have seen the witnesses adding their signatures to her will inside.
This led to people signing Wills through windows and on car bonnets, as so long as they had a clear line of sight of the two witnesses on the other side of the glass the Will would be valid.
Signing Wills Virtually
As the nation learned to use Zoom so the Government moved quickly to bring in an amendment to the Wills Act 1837 and allow Wills to be signed virtually. The amendment, which was retrospective to the beginning of the pandemic and was scheduled to expire in January this year, has now been extended until at least January 2024
What this means is that while a Will must still be signed in the presence of at least two witnesses, the testator and the witnesses do not have to be physically present in the same room and a 'virtual' meeting via Zoom or Teams would enable a Will to be validly executed. The Ministry of Justice has indicated that remote witnessing via video technology should be a last resort, and physical witnessing should be used in preference where it is safe to do so. In addition virtual witnessing is recognised only if the quality of the sound and video is sufficient to see and hear what is happening.
Many practitioners are very cautious about remote witnessing, with recent research by the Law Society finding that only 14% of legal professionals who had drafted Wills since the amendment was made had used videoconferencing to witness Wills. However, in certain cases, for example where someone is extremely clinically vulnerable, the ability to execute a Will in this way is welcome. However it is vital to ensure that safeguards are observed, for example recording the meeting, to ensure that there is no question of fraud, or undue influence, and when the Will is sent to the witnesses for signing registered post should be used.