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The Wills Act 1837, which has been in place for nearly 200 years, requires that a Will must be signed by the testator in the presence of two witnesses who must also sign the Will in the testator’s presence.
The coronavirus pandemic has prompted a huge increase in the number of people making or updating Wills but with social distancing measures and self-isolation to contend with, complying with this requirement had become challenging.
In response to the pandemic, the Wills Act 1837 has been amended to allow Wills to be witnessed remotely. Section 9 of the Wills Act 1837 has been amended so that the definition of “presence” found in subsection 1(c) and 1(d) includes “presence by means of videoconference or other visual transmission”. The amendment was introduced on 28 September 2020 but applies retrospectively to Wills made from 31 January 2020 and is intended to remain in force until 31 January 2022.
Although this amendment helps with the difficulties in getting Wills properly executed during the pandemic, the new regime will inevitably give rise to a new line of litigation.
Extent of the amendment
The word “presence” also appears is section 9(1)a of the Wills Act 1837, in respect of a will being signed by another person on behalf of a testator in his presence and by his direction. However, this word is not amended to include videoconference or other visual transmission. The testator cannot therefore remotely direct someone to sign on their behalf. If a person signs the Will on the testator’s behalf, they have to be physically present with them.
Furthermore, the execution of the Will must be done in real time. The testator and both witnesses need to sign the same document and their signatures have to be wet signatures. It is not acceptable to pre-record the testator signing or to use counterpart Wills.
While the amendment has been very much welcomed in the circumstances, it has not been without concern that it could increase the risk of a will dispute further down the line.
Clear line of sight
The Ministry of Justice has issued the following guidance on signing Wills remotely:
“By law, the witnesses must see the Will-maker (or someone signing at their direction, on their behalf) signing the Will. Before signing, the Will-maker should ensure that the witnesses can see them actually writing their signature on the Will, not just their head and shoulders.”
With the practical problems we have all faced with webcams freezing or internet connections failing, it is easy to foresee the risk of a challenge to the validity of a will on the basis that the act of signing may not have been visually witnessed by all .
Once the testator has signed, the Will needs to be physically sent to the witnesses, which means it will need to be delivered to them one way or another. The introduction of delay carries with it risk, particularly in the case of an elderly, ill or vulnerable testator and there is also possibility of the Will going astray in the post altogether, and.
If the testator dies or loses capacity before both witnesses have signed then the Will is invalid.
Undue influence, fraud and abuse
The fact that the testator is physically separated from the witnesses creates the obvious risks of undue influence and fraud.
In videoconference, the witnesses will only be able to see what is being captured in the frame, which means there is the risk that someone could be hidden off camera. It is also possible that the Will could be intercepted in transit from the testator to the witnesses. Both scenarios would of course raise questions over the Will’s validity.
Whilst the temporary amendment has undoubtedly proved helpful in allowing those most vulnerable to COVID-19 to execute a Will, in order to mitigate a risk of a challenge we would recommend testators to consider having their Wills re-executed in the traditional way once it is safe for them to do so.
For more information on the article above, please contact our Disputed Wills & Trusts team.