Witnessing Wills Over the Internet
Introduction
Under the Wills Act 1837, two witnesses were required to be in the physical presence of the testator for a valid will. Due to COVID-19, social distancing, and the constraints on movement, the signing of wills could not be witnessed, in the presence of the testator. The government introduced a statutory instrument which temporarily changed the Wills Act 1837, and allowed the witnessing of wills, to take place using video-conferencing technology. This article explores the requirements and potential problems of witnessing wills over the internet.
What are the Requirements for Witnessing Wills Over the Internet?
The new legislation will apply to wills made since 31 January 2020, unless the grant of probate has already been issued, or an application has already been administered. The testator, and their two witnesses, must each have a clear line of sight, of the writing of the signature. There must be no undue influence. The testator and witnesses must have capacity. A witness cannot be a beneficiary. The testator must see and be seen by the witnesses, and show them the will and permit them to watch them sign the will. They must confirm they have seen and understand the process. The will must be sent to both witnesses. Both witnesses need to see and be seen by the testator, and each other, when they sign. They must acknowledge they have seen it, to each other. Signatures must still be made on paper. The will should contain an attestation clause, stating the method of signature and witnessing, and details of any recording. The will should be returned for safe keeping. The legislation has a time limit of the 31st January 2022. After this deadline, the requirement for physical presence will return.
What are the Potential Problems?
There are concerns that wills witnessed over the internet could result in undue influence. Someone could compel a testator, to make a will in their favour, and easily avoid being seen by a video camera. The online process will take longer than making a traditional will which could increase the cost. The length of time could result in someone dying before the completion of the will. There could be issues with internet connection and if the recording is not of adequate quality, to prove the signing, then the will may not be valid.
Conclusion
It is clear that the new reforms, which are in line with Scotland, Canada and the US, will mitigate practical difficulties, that the public have experienced, when making wills in the COVID-19 era. However, the potential pitfalls of cost, time and undue influence suggest online wills are rather risky. We strongly advise to firstly discuss your case with a solicitor and explore what could be done.
This article is for the information purposes only and does not constitute legal advice. Contact us today for further information or to request a copy of our handy guide “How to safely witness Wills when you are self-isolating”.
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