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Witnessing of Wills go Digital

Witnessing of Wills go Digital

Witnessing of Wills go Digital

The COVID-19 pandemic has changed our lifestyles, the way we work and communicate and even the way we think about our future! This has meant more people are relying on digital services to get things done while keeping safe at home- and government institutions have been adapting to manage these changes.

One important development was announced, very recently, which has had an impact on individuals making a will.

The impact of the Coronavirus pandemic on wills

To make a valid will in England and Wales, the will has to be witnessed by two independent witnesses so that all three- the two witnesses and the will maker- are present together. In more details, the Wills Act 1837 states that a will is valid if:-

  1. It is written and signed by the testator, or by some other person in their presence and by their direction;
  2. It appears that the testator intended by his/her signature to give effect to the will;
  3. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and lastly,
  4. Each witness either:
  5. Attests and signs the will; or
  6. Acknowledges his/her signature, in the presence of the testator (but not necessarily in the presence of any other witness) however no form of attestation will be necessary.

The above is a crucial safeguard to protect people against undue influence and fraud. This was all well and good for ‘life before the Coronavirus’, but with the UK having been under lockdown, and a significant number of people still self-isolating or shielding, meeting this legal requirement has proved to be difficult.

In a welcome change the Government has announced, on 25 July 2020, the legalisation of wills witnessed remotely, making it less demanding for the general public in England and Wales to record their final wishes during the Coronavirus pandemic.

Video-witnessed wills legalised during Coronavirus pandemic

This change will be made via new legislation in September 2020 and will therefore, amend the Wills Act 1837.

The reform means that any person wishing to make a will can get this essential legal document witnessed using video link software such as Zoom or FaceTime, provided that the person making the will and their two witnesses each have a clear line of sight of the writing of the signature.

It is important to note, however, the use of video technology should remain a last resort, and individuals are required to continue to arrange physical witnessing of wills where it is safe to do so. For instance, a will witnessed through a window is already legally acknowledged in case law as long as there is clear sight of the person signing it. Although, a will still needs to be signed by two witnesses who are not its beneficiaries and electronic signatures will not be permitted.

The measures will be backdated to 31 January 2020, the date of the first confirmed Coronavirus case in the UK, meaning any will witnessed by video technology from that date onwards will be considered lawful. The Government have indicated that this amendment will remain in place until 31 January 2022, or as long as it is “deemed necessary”, after which wills must resume to being made with witnesses who are physically present.

Why is it important to make a Will?

If you pass away without a valid Will, your estate will be administered in accordance with the intestacy rules. This is a statutory “pecking order” which dictates who gets what from your estate, and who is entitled to administer your estate. This may not be the way that you would have wished your money and possessions to be distributed. Here are some of the common problems with the intestacy rules:-

  • They do not ensure that a surviving spouse inherits the whole estate of a deceased spouse
  • They do not recognise cohabitees in any way
  • They do not recognise step children
  • They can result in the payment of unnecessary tax
  • They can add to the costs of estate administration

Accordingly, making a valid will and avoiding the intestacy rules is an important way of ensuring your wishes are carried out, and your loved ones are not left with unnecessary heartache, and financial problems. A will can be used to:-

  • Decide who you would like to administer your estate on your death
  • Appoint guardians of children under 18 and set up trusts to support them
  • Make gift (perhaps of jewellery or other items of sentimental value)
  • Set out your funeral wishes
  • Incorporate tax planning measures
  • Deal with more complicated family structures

A will does not need to cost a lot of money- the cost of not making one however, could be a lot more!!!

If you are thinking about making a new will, or updating a will, our highly experienced solicitors can guide you through the whole process, ensuring it is simple and hassle free for you as possible. We can also explain how you can legally get your will witnessed remotely if you are self-isolating or shielding during the Coronavirus pandemic.

Disclaimer: The information on our website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact us.

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