The end of the virtual era for wills: what to know about the validity of remotely witnessed wills

For more than 150 years in order for a will to be valid, it had to be made in accordance with section 9 of the Wills Act 1837. The fundamental requirements under section 9 are that:

• The will is made in writing.
• The will is signed by the testator, or by someone on his behalf at his direction and in his presence, in the presence of at least two witnesses.
• Each witness must sign the will in the presence of the testator.

That was the case until 2020. During the covid-19 pandemic it was recognised that a technological solution was needed to allow people to make valid wills whilst social distancing restrictions were in place. Thus began the era of the remotely witnessed will.

A temporary measure to address this was officially introduced as an amendment to section 9 of the Wills Act 1837 in September 2020 to cover wills and codicils made on or after 31 January 2020. The amendment to the Wills Act allowed for the signing and witnessing of wills and codicils to be undertaken remotely via video conferencing platforms such as Zoom, MS Teams and Skype.

This amendment came to an end on 31 January 2024, after the government decided not to further extend the legislation. In this article, we summarise the Ministry of Justice’s remote witnessing guidelines as they then were. We recommend that testators review their wills and codicils against those guidelines. 

What do testators need to do if their will was created using remote witnesses?

Under the temporary measure any will or codicil validly made using remote witnessing between 31 January 2020 and 31 January 2024 remains valid. There is no automatic need for testators to remake testamentary documents or have them re-witnessed in person. However, if you or a loved one has made a will or codicil which was witnessed remotely, it's certainly advisable to check that its making complied with the Ministry of Justice’s guidance on making wills using video-conferencing. If the correct procedure has not been followed, this could mean the will or codicil is not valid. 

The safe option, if a testator is able to make a will since the regime ended, is to remake the will again under the conventional regime, but of course that may not always be possible. 

Ministry of Justice’s remote witnessing guidelines summary

A brief summary of the Ministry of Justice’s remote witnessing guidelines is as follows:

• The will must have been made between 31 January 2020 and 31 January 2024.
• The witnessing of the will by video conference must have been undertaken in real time. This means that the witnesses cannot have watched a recording of the testator signing their will or vice versa.
• Ideally, both witnesses will have been physically present with each other, although if this was not possible they must have been be present at the same time on the video conference.
• The testator should have held up the front page of the will, and the signature page, to the camera to show the witnesses.  
• The witnesses must have seen the will-maker, or someone signing at their direction on their behalf, actually signing the will, therefore before signing, the will-maker should have ensured that the witnesses could see the document they were to sign on screen, and not just their head and shoulders.
• The same document, not a copy, should then have been taken to the witnesses to sign. Ideally this would have been within 24 hours, although longer periods of time may be unavoidable, i.e. when documents need to be posted. It is important to note that a will is only valid once the testator and both witnesses have signed it, and been witnessed doing so. If a testator were to die before the full process has taken place a partly completed will is not legally effective.
• On the resumed video call each witness should have held the will up to the testator to show them what they are signing, and the testator and other witness must have been able to see the witness writing their signature, not just their head and shoulders. 
• If the witnesses were not physically present with each other, the above steps will need to have taken place twice, ensuring both times that the testator and other witness were 'present' on the video conference.

These were guidelines to implement a practice not previously allowed by law. There are some grey areas whereby a will could be valid even in circumstances where the guidelines have not been followed perfectly. 

What next?

The era of the remotely witnessed will was short, giving will drafters little time to become familiar with, or to perfect the process. With ever increasing numbers of will disputes, the novelty and ambiguity of the legislation surrounding remotely witnessed wills has no doubt opened up a new avenue to contest the validity of wills made in that era. We will be watching this space for the first reported case. 

For further information, please contact our trusts and estates team