Why video witnessing of Wills should be a last resort


17th September 2020

Following the announcement in July that the Wills Act 1837 is set to be amended to allow for video witnessing of Wills, we look at the impact this will have for clients and the advantages and the limitations of this change.

This change will allow for Wills to be witnessed both in physical and virtual presence, provided the signing is done in real time. Whilst the testator and the witnesses can be in different locations, it is important to note that all the other formalities of Will signing remain in place. These include:

  • the need for two witnesses
  • beneficiaries and their spouses or civil partners cannot act as witnesses
  • electronic signatures are not permitted

The change in legislation will have a retrospective effect and apply to all Wills made since 31 January 2020 and will continue to apply to Wills made up to 31 January 2022 with the caveat that the Government can shorten or extend this if it is deemed necessary.

Advantages of video witnessing of Wills

During COVID-19, there has been a lot of confusion concerning the execution of Wills whilst adhering to social distancing measures. Video witnessing of Wills enables them to be drawn up and validly executed even for those who are isolating.

It is also beneficial that the amendment will have retrospective effect, ensuring that any Wills that have been witnessed virtually since 31 January 2020 have legal force.

Limitations of video witnessing for Wills

There are however drawbacks to this relaxation of the strict legal formalities including increased risks and potential challenges to the Will’s validity.

  • Even though the Will may be witnessed by video, the single physical copy of the Will must be firstly signed by the testator and then sent to each individual who has witnessed the signing so that they can add their signature and details. This creates a potential risk should the testator die before all witnesses have signed the document, making the Will invalid.
  • A second concern is the increased risk of undue influence. As the testator is not physically present it is harder to assess whether the individual is being put under pressure to change their Will or whether the testator is alone when signing their Will.
  • A final concern is that assessing someone’s capacity is even more challenging over video calling. There is a risk of a greater number of challenges to Wills in the future on the grounds that the testator lacked capacity.

Conclusion

In light of these considerations, and although there are advantages to the option of video witnessing of Wills, the traditional method of physical presence should be used wherever possible.  Video witnessing should only be a last resort.

If you have any questions on this matter or anything regarding your Will, please get in touch with one of our Wills solicitors.

This article has been co-written by Stephen Evans and Eleanor Catling.

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