On 25 July 2020, the Government announced plans to introduce legislation permitting wills to be witnessed virtually. The legislation will relate to England and Wales only and will be backdated to 31 January 2020, effective for two years until 31 January 2022.
The rules regarding the signing of wills can be found in section 9 of the Wills Act 1837. That is:
“No will shall be valid unless—
- it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
- it appears that the testator intended by his signature to give effect to the will; and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either—
- attests and signs the will; or
- acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary”.
The new law will amend the Wills Act 1837 to stipulate that where wills must be signed in the ‘presence’ of at least two witnesses, their presence can be either physical or virtual. Wills will still need to be signed by two witnesses (there are restrictions on who these can be, the most common of which is that they should not be beneficiaries under the will) and electronic signatures will not be permitted.
The Ministry of Justice has confirmed that wills signed remotely will not be valid until signed by all parties, which could take several days, and gives rise to the risk that the testator will not have made a valid will were they do die between signing the will by the various parties. There are other considerable risks to remote witnessing and it should only be used as a last resort and very carefully. Ideally, the meetings should be recorded and a copy kept with the will.
Our Private Client team have continued to assist clients with wills during the pandemic, many of which have been signed at the client’s home in a socially distanced manner – a far preferable way than being witnessed remotely.
If you have any other questions or queries regarding the above please don’t hesitate to contact a member of our wills, trusts and estate management team or call 01737 854 500 or email [email protected]