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Virtual will signing: how does it work?

17/03/2021

Author: Dawn Parkes

Wills, Tax and Probate

Dawn Parkes Hatch Brenner Norwich Managing Partner

Dawn Parkes Hatch Brenner Norwich Managing Partner

The Government introduced a temporary amendment to the 183-year old Wills Act in September 2020 meaning that you can now use video-conferencing technology for the remote witnessing of wills as an alternative to physical presence.

There has been a large uprise in demand for wills over the last 12 months as the events of the pandemic continue to encourage many to ensure they execute valid wills and make future provisions for their family and loved ones.

However, for the many who have needed to isolate and shield throughout the pandemic, it has presented challenges to the legal witnessing and completion of wills. In recognition of this, and to improve accessibility, the new temporary rules allow wills made between 31 January 2020 and 31 January 2022 and witnessed via video link to be legally recognised.

What were the previous requirements?

The previous requirements to make a legally valid will were:

1. It must be in writing;

2. It must be signed by the person making it in the presence of two independent witnesses;

3. The witnesses must each sign it in the presence of the person making it.

One of the main challenges with the original legislation during the pandemic has been that because witnesses must not benefit from a will, it often rules out people living in the same household, therefore an alternate solution was required.

What are the changes?

The Wills Act 1873 has been amended to allow the ‘presence’ of those making and witnessing wills to include virtually, through a live video link, as an alternative to a physical presence.

Key requirements for signing and witnessing a will by video link

A special attestation clause to say it is being witnessed remotely is added to the will and the session should be recorded. If ever required, this confirms the validity of the will.

Conducted via live video link, it is essential for the video conferencing device (I.e. computer, laptop, tablet or smartphone) to be angled to provide witnesses with a clear view of the person making the will (the ‘testator’). This is so both witnesses can identify the testator and see them write their signature on the will.

After the testator has signed the will, it should then be taken to the two witnesses for them to physically sign. The process will be repeated with both witnesses signing the document on live video link, clearly viewed by the testator and the other witness.

Once this process has been completed by all three parties, and within 24 hours, the will becomes legally valid.

Please see the more detailed Step by Step breakdown of the new process at the bottom of this article.

It is worth noting that with the Covid-19 lockdown restrictions easing, the advice from the Government remains that where people can conventionally make wills, they should continue to do so.

Our Wills, Tax and Probate team will guide you through each stage of the process, ensuring your will is executed validly and with care and attention. Contact Managing Partner and Private Client Solicitor Dawn Parkes at dawnparkes@hatchbrenner.co.uk or call 01603 660 811 to arrange an appointment.

Read on for our Step by Step virtual will signing process guide:

Stage 1:

  • The person making the will should ensure that their two witnesses can see them, each other and their actions.
  • The will-maker or the witnesses should ask for the making of the will to be recorded
  • The will-maker should hold the front page of the will document up to the camera to show the witnesses, and then turn to the page they will be signing and hold this up as well.
  • 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.
  • The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.

Stage 2:

  • The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.

Stage 3:

  • The original will document should be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same original document.
  • A longer period of time between the will-maker and witnesses signing the will may be unavoidable (for example if the document has to be posted) but it should be borne in mind that the longer this process takes the greater the potential for problems to arise.
  • The will only becomes legally binding once all three individuals have physically signed the original copy. Due to the risks of undue influence or fraud against the person making the will, electronic signatures are not accepted.

Stage 4:

The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign:

  • The witnesses should hold up the will to the will-maker to show them that they are signing it and should then sign it (again the will-maker should see them writing their names, not just see their heads and shoulders).
  • Alternatively, the witness should hold up the signed will so that the will-maker can clearly see the signature and confirm to the will-maker that it is their signature. They may wish to reiterate their intention, for example saying: “This is my signature, intended to give effect to my intention to make this will”.
  • If the two witnesses are not physically present with each other when they sign, then stage 4 will need to take place twice, in both cases ensuring that the will-maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.

Stage 5:

  • If the two witnesses are not physically present with each other when they sign, then stage 4 will need to take place twice, in both cases ensuring that the will-maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.

Read more:

STEP Briefing Note: https://www.step.org/sites/def...

The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020: https://www.legislation.gov.uk...

Video-witnessing wills. The Law Society: https://www.lawsociety.org.uk/...

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