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Last wills and testaments go digital… partially

John Williams explains how wills in England and Wales can now be drawn-up virtually, albeit with physical signatures, if you follow the detailed procedure.
After many months of appeals, the Ministry of Justice has finally announced that video-conferencing will be able to be used to witness wills in England and Wales.

The announcement also clarified the parameters by which wills can be witnessed if there is a ‘clear line of sight’, but without witnesses having to be in the same room. However, the legislation stopped short of allowing for electronic signatures due to the risks linked to undue influence being applied and fraud.


The industry pressure came during lockdown given the increased numbers of people wanting to make a will, or update old documents. However, for those self-isolating or shielding, it quickly became apparent that it was very difficult to follow the normal legalities of making a will. These mean it has to be witnessed by two independent people in the presence of the person making the will (known as the testator) and since the witnesses (and their spouses) cannot benefit from the will.


As such, the witnesses can now be present virtually via a video-link, and this applies retrospectively to any wills made in this way since 31 January 2020 – the first official COVID-19 case in England. The law has an initial deadline of 31 January 2022 to give the government time to complete a proper review of the full 180-year-old legislation and bring it up-to-date more systematically.

The ministry was keen to emphasise that a physical witnessing was still preferable, either through a window or open door of a house or vehicle, from a corridor or in an adjacent room (via an open door), or outdoors from a short distance, e.g. in a garden. Where this is not possible, a video attestation is now an option.


Once the legislation comes in during September 2020, wills can be drawn up following the detailed guidance, which is available here. In summary, if it is your will, you 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 despite the signatures being witnessed virtually. You can’t just send around only the sheet you signed – it needs to be the whole will.
  4. You should record the live video sessions (a series of recordings is not sufficient) and everyone present needs to confirm on camera that they can see and understand what is happening. You need to detail on your will that it was witnessed by video conference.
  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, but the single witness has to be a solicitor or will maker. Details of that change can be accessed here [scroll down to the wills guidance section].


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

    • 18 years old or over
    • Making it voluntarily i.e. without ‘undue influence’
    • Of sound mind
    • Putting it in writing
    • Signing it before two witnesses who are both over 18

It is difficult to find someone who you don’t actually know to witness your will in normal circumstances and, while this is going to be even more of a challenge during the pandemic, this too is possible via virtual witnessing. To do so, you will need to make sure you identify yourself on video, putting up your passport or driving licence to the camera, (while recording) before your witnesses acknowledge your identity and you start signing.


It’s estimated that half of Brits don’t have a valid will* – either they have never drawn one up or their will is out of date. And my experience with high-net-worth clients suggests that number doesn’t change much as people’s wealth levels increase. It is recommended that a will is reviewed every five years, or sooner if there has been a material change in your life e.g. you have moved home, got married or divorced etc.


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

JOHN’S TIP

It is advisable to use a solicitor to ensure that the will that you make is valid and stands up to any scrutiny. Increasing numbers of wills are being contested – a process which can be very upsetting for everyone involved.

Clients of Nedbank Private Wealth can get in touch with their private banker directly to understand how wealth planning can help them achieve their financial goals and objectives, or call +44 (0)1624 645000 to speak to our client services team.

 

If you would like to find out more about how we can help you with wealth planning support, please contact us on the same number as above, or complete the contact us form using the link below.

Any examples of investments and structures used are for illustrative purposes only. The inclusion does not constitute an invitation or inducement to buy any financial investment or service. None of the content constitutes advice or a personal recommendation. Individuals should seek professional advice, based on their jurisdiction and personal circumstances, before making any financial decision.

about the author

John Williams

John Williams

John heads up the wealth planning proposition for the international business. He works with clients and their families, in tandem with their professional advisers, to ensure they have a clear financial plan in place to achieve their financial objectives. Working in partnership with our teams of private bankers, he integrates the benefits of wealth planning alongside our broader wealth management and wealth structuring capabilities.

 

John has over 25 years of advisory and management experience, working for global organisations providing solutions to a wide variety of UK and international clients. He joined from Credit Suisse UK where he was head of wealth planning for five years. He has also held similar senior roles at Barclays and UBS.

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