Last wills and testaments go digital… virtually

One unexpected outcome of the global pandemic is that the traditional process of making a will was finally adapted for the digital age – albeit using temporary guidance. The modified approach came after many months of appeals to the Ministry of Justice, who finally conceded, in September 2020, that video conferencing can be used to witness wills in England and Wales.

The industry pressure came during lockdown as many people decided they should make a will, or update their old one. However, for those self-isolating or shielding, it quickly became apparent that it was very difficult to follow the legalities of making a will.

Ever since the Wills Act of 1837, a will has to be witnessed by at least two independent people in the physical presence of the person making the will (known as the testator). Almost any adult can be a witness, but they should not be family members or anyone (or their spouses) looking to benefit from the will.

The announcement was welcomed as a more modern approach, with the legislation setting out clear parameters as to how distanced witnessing should work in practice. But the legislation stopped short of allowing for electronic signatures due to risks of undue influence being applied and for fear of fraud.

For law makers, the important thing is that the person making the will and their witnesses each have a ‘clear line of sight’ of the writing of the signature, even if they are not in the same room. It allowed witnesses to be present virtually via a video link. The measure was applied retrospectively to cover any wills made in the same way since 31 January 2020, and has an initial deadline of 31 January 2022, giving the government time to complete a full review of the 180-year-old legislation and update it more systematically.

The ministry was keen to emphasise that physical witnessing is always preferable, either through a window or the open door of a house or vehicle, from a corridor or an adjacent room through an open door, or outdoors from a short distance, for example in a garden.

Under the legislation, wills should be drawn up by closely following the prescribed guidance. In summary, if it is your will, you will need to:

1. Make sure you and your witnesses can all see each other physically signing the will, even when that’s over multiple days. Everyone and the document has to be in ‘clear line of sight’.
2. The testator should sign each page of the will, but the witnesses do not have to do this.
3. The same document needs to be physically delivered and signed by all parties, despite the testator’s signature being witnessed virtually. And you can’t just send around the sheet you signed – it must be the whole will document.
4. You should record the live video sessions (a series of individual recordings is not sufficient) and everyone present needs to confirm on camera that they can see, hear and understand what is happening. You need to detail on your will that it was witnessed by video conference and the recordings need to be retained and available for scrutiny.
5. You should aim to get the will signed by all three parties as quickly as possible, as all three have to have signed the document for it to be valid.

Similar legislation in Scotland came into effect at the end of March 2020, but only requires a single witness such as a solicitor or will maker. Details of that country’s change can be accessed here [scroll down to the wills guidance section].

Meanwhile, the usual requirements still apply for a will to be legally valid. As the law currently stands, this means you must:

• • Be 18 years old or over
  • Make it voluntarily i.e. without ‘undue influence’
  • Be of sound mind
  • Put it in writing
  • Sign it before two witnesses who are both over 18.

If your witnesses do not know you – for example, if one witness has put a person forward because other potential witnesses are in the will as beneficiaries – you will need to make sure you identify yourself on the video during the recording and show your passport or driving licence to the camera so your new witnesses can see. Then, acknowledge your identity, show the will document to the camera and witnesses, and start signing.

It is also worth considering a letter of wishes to sit alongside your will. Unlike a will, which becomes a public document once probate has been granted, a letter of wishes allows you to set out more personal details or private family affairs, which will remain confidential to the executors.

Having a will helps your family significantly at a time of grief and we believe getting one in place is a fundamental part of the wealth planning process.