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Has the signing of Wills zoomed into the 21st Century?

07 Aug 2020

For the best part of 183 years the way in which Wills must be executed in England and Wills has largely remained unchanged.

For a Will to be valid it must be:

  • made in writing
  • signed by the person making the Will (known as the Testator) in the presence of two witnesses
  • the two witnesses must also sign in the presence of the Testator and each other

This has presented a number of challenges following the Government’s announcement of the nationwide lockdown in the face of Covid-19 back in March when people could not meet others from the same household and could not go out in more than groups of 2.

Luckily, the law already recognised that to be in the presence of the Testator, the witnesses only needed a clear line of sight to witness the Testator’s signature, which also applies to the witnesses signing the Will in the presence of the Testator and each other. This has therefore enabled us, in our role as Key Workers, to continue to facilitate the signing of Wills whilst people were self-isolating or shielding, by witnesses watching the Will signing through the front window or over the garden fence. Whilst not ideal it served a purpose in the circumstances.

However, this was not possible for everyone, and a number of people were left with no alternative but to try to have their testamentary wishes witnessed over video call.

After much lobbying, the Government have now proposed a change to the law, which is due to take effect in September and will ensure that Wills which are witnessed over video call will be valid. It has been suggested that the change to the law will be retrospective so that any Wills witnessed in this way since 31 January this year will be valid.

There are, however, a number of factors which must still be adhered to:

  • Two witnesses must still watch the Testator sign the Will over video call and be able to see them do this, and following this both witnesses must also sign the Will and this must also be witnessed over video call by all three parties. The Will must therefore be sent to the witnesses for signing over video call, and, if the Testator were to die before the witnesses sign the Will, then it will not be valid.
  • Ideally the signing should be recorded at the time it is done so that there is evidence of how the Will was executed.
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  • Pre-recorded signings will not be permitted and it is emphasised that the signing must be done in ‘real-time’.
  • Electronic signatures and signing the Will in counter-part (where each party signs their own copy of the same document) will not be allowed.
  • The change to the law is scheduled to apply until 31 January 2022, however, it could be brought to an end sooner if appropriate.

The Government announcement has highlighted, however, that the signing of Wills over video call should be a last resort and that where possible the conventional method of entering into a Will should be followed. Whilst this is a welcomed change in the circumstances, it is by no way an overhaul of the way in which we make Wills, which is still currently under review.

Of course, all other legalities required to make a Will must still be complied with, such as ensuring the Testator has the required mental capacity to enter into the Will, that there is no undue influence or pressure being exerted on the Testator, and that they have full knowledge and approval of the contents of the Will.

In these difficult times, it is arguably more important than ever to seek expert legal advice about the preparation and execution of your Will.

At Hay & Kilner, our team of expert advisers have worked tirelessly throughout the pandemic to meet the needs of those wishing to make Wills and enter into Lasting Powers of Attorney, and to assist those who have been bereaved during this difficult time. If you require any assistance in these matters please contact Richard Marshall at richard.marshall@hay-kilner.co.uk or on 0191 232 8345 for a free no obligation initial conversation to see how we can help.