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The signing of Wills – an update5th August 2020 Wills, Trusts & Estate Planning
Last week the government announced that it will be introducing temporary legislation to enable people to use a video link to witness the signing of Wills virtually, where witnessing in person is not feasible.
The current situation
In previous blogs this year, JMW Solicitors have highlighted the issues faced by people making Wills following the outbreak of Covid-19. Although we have been able to offer meetings with clients over the phone or via video calls in order to prepare their Wills, under the current law (section 9 of the Wills Act 1837) there are certain formalities that must be observed for a Will to be valid. A Will must be made (with extremely limited exceptions):-
- in writing;
- signed by the person making it; and
- signed by two independent witnesses who must see the Will maker sign it
Under the current rules, the witnesses must be physically present.
The only exception to these requirements is that it is possible for a member of the armed forces whilst on active service to make a valid Will orally, or in writing with no witnesses or signature. These rules aside, if the formalities are not strictly followed then the Will is invalid. The result of this is that either an earlier Will may be re-instated, or the estate will pass in accordance with the intestacy rules.
The proposed legislation
We understand that the government’s announcement would mean a testator (the person making the Will) can sign their Will whilst the two witnesses watch via a live video and that the testator would then need to send their signed Will to each of the witnesses so that the process can be repeated with the testator watching the witnesses sign (or “attest”) the Will via video link.
The existing law does not allow witnesses to sign a counterpart or copy of the Will, so it seems inevitable that this new process will take longer than if the witnesses are in the physical presence of the testator.
The new law is expected to come into force in September this year and will apply for Wills executed up until 31 January 2022. It is also set to be made retrospective and so it will apply to anyone whose Will has been executed in this way since 31 January 2020. However, the legislation will not apply where the testator has died and either a Grant of Representation has already been obtained or the application for the Grant is in progress at the Probate Registry.
At the time of writing, the new legislation has not yet been drafted and so its scope and operation is currently unclear. We would advise anyone planning to arrange the remote witnessing of their Will before September to exercise extreme caution and always to let their Solicitor know that this is the case, so that they can receive appropriate advice.
As with any new law, the introduction of remote witnessing of Wills is likely to raise a number of questions and there will be an increased risk of the validity of Wills made this way being challenged. For now, anyone with concerns about signing their Will safely can consider the options of signing through the window of a building or vehicle or alternatively, with their witnesses watching from a short distance e.g. from another room with the door open or outside in the garden.
We will of course continue to monitor the situation and to keep our clients updated as the legislation progresses.
However, in the meantime, if you do have any queries about making a new Will then please do not hesitate to get in touch with a member of our team.