Video Will Witness Practices are Now Legal

It’s now official: a witness to the signing of someone’s Will by video is now acceptable. A video will witness (two of them, specifically) becomes acceptable to make a will valid in England and Wales.

Valid with a backdate of 31 January 2020, the ruling carries on for at least two years. That particular date is significant in Covid-19 trace history: it represents the first confirmed coronavirus case in the UK. 

The video will witness news comes amidst an effort to limit the necessity of in-person witnessing of wills due to social distancing precautions. Before that date, the will would by law be invalid if witnesses were not physically present.

A Pandemic-led Response

But such is another casualty of the Covid-19 pandemic. As a result, any wills witnessed remotely via video link are legitimate in England and Wales. In turn, this makes it easier for people to record their final wishes during the pandemic.

Reports show the law will be in effect until January 2022, thus reducing the potential complications Covid-19 presents to inheritance matters. For instance, the ruling can minimise estate backlogs or reduce the number of occasions where a will is not formalised. Older populations throughout the UK and the world alike are at risk due to the disease. Accordingly, Will & Testament complications may also avoid a sudden spike.

Government has deemed legal this turn to video legality by amendment of the Wills Act 1837. 

Certain Specifics of Video Will Witness Laws

Below are some of the more notable bits from Guidance on making wills using video conferencing. The guidance went live 25 July 2020 and is on offer from authors at the Ministry of Justice.

Exceptions to this ruling in England and Wales

Video conferencing witnessing will apply to wills made since 31 January 2020, but with two significant exceptions.

First, any cases where the issuance of the Grant of Probate in respect of the deceased person (testator) occurs.

Second, any cases where the application is already going through the administration process.

Video Will Witness practices are a temporary addition to the Wills Act 1837

The Guidance makes clear that the video conferencing witness validity is the only significant change to the nearly 200-year-old legislation. Moreover, it takes space to mention specific things that remain true about carrying out a valid will.

For example, a testator still must have ‘testamentary capacity’ (i.e. know what they are doing and can effectively express their true intentions). Also, however the witnessing of the signing occurs, you still officially need two witnesses of that signing. Plus, witnesses must still either sign the will or acknowledge their signature of the will in the presence of the testator.

Coupled with January 2022 end date, the rule is also only temporary in nature as a response to social distancing and self-isolation measures.

The Head and Shoulders Rule

For the duration of this add-on, a view of the actual signing itself is critical. From the Guidance:

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 Clear Line of Sight Rule

In addition to video will witness, the Guidance also lays out three other scenarios wherein wills can become witnessed and valid. Included in these are:

  1. Through a window or open door of a house or a vehicle.
  2. Additionally, from a corridor or adjacent room into a room with a door open.
  3. Also, in the outdoors from a short distance (for example, a garden).

Additionally, the ruling states there must exist a clear line of sight for the witnesses of the will-maker signing the will. These are meant to denote acceptable safety precautions for will witnessing in a social distancing world.

Video and Audio Must be of Sound Quality

Difficulties with video connections become common in a remote society, unfortunately. The Guidance also is aware of how this can go haywire. Ministers advise that all parties ensure video and audio quality broadcasts a clear understanding that a will signing occurs.

Treat this as a Last Resort

The Ministry of Justice, however, encourages that people continue to arrange physical witnessing of wills. The case in the UK, with this temporary measure, allows video-link witnessing but hopes it will remain a last resort.

What insiders are saying about the video will witness

Justice secretary Robert Buckland told The Independent: “We know that the pandemic has made this process more difficult. Which is why we are changing the law to ensure that wills witnessed via video technology are legally recognised.”

“Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time while continuing to protect the elderly and vulnerable.”

Rob Cope is the director of Remember A Charity. He tells Civil Society’s Val Cipriani that charities, in particular, could benefit significantly from the news. Moreover, it could lead to an increase in will writing.

“Ultimately, the more people that write a will, the greater the potential for including a charitable donation,” he says. “Even a small increase in the proportion of people leaving a gift in their will could generate millions for good causes each year.”

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