Video Witnessing: The End Of The Covid Era
The temporary legislation allowing Wills to be witnessed via video comes to an end this month. Wills and Probate Solicitor, Matthew Kelly, discusses the end of video witnessing in his latest blog…
A Temporary Relaxation of the Rules
During the Covid-19 pandemic an amendment to the rules for the witnessing of Wills was introduced as an emergency measure to allow Wills to be witnessed through a series of video calls (e.g. Zoom, face time etc). Although the witnesses were not present in the same room when the Will was signed, under the revised rules, being present by video was deemed to be “present” for the Will to be validly witnessed.
The rule was introduced by the guidelines of the Wills Act 1837 (Electronic Communications) Amendment) (Coronavirus) Order 2020 (SI 2020/952). Initially set for two years starting January 31 2020, this order was later extended to include Wills executed until January 31, 2024.
As this deadline is near, we are safe to assume the order will not be extended beyond the end of this month and video witnessing will no longer be a valid method of witnessing Wills. Many practitioners had concerns about video witnessing, including the fear that the testator might be under a degree of coercion from third parties that would be less apparent due to the witnesses only being present by video link.
The video witnessing process was also quite complicated to document and ensure compliance so many practitioners will not mourn the end of video witnessing. Some of us will recall witnessing clients sign their Wills through their living room windows (whilst avoiding the daffodils) and other alternative methods to video witnessing.
Back to the Old Regime
With the demise of video witnessing all Wills now must be witnessed in ‘the old fashioned’ way, i.e. with the testator and witnesses meeting face to face and in accordance with the strict provisions of Section 9 of the Wills Act 1837 which requires:
i) A Will must be in writing,
ii) A Will must be signed by the testator (the person making the will) or signed on behalf of the testator in their presence and by their direction,
iii) The testator’s signature (or acknowledgement) must be made in the presence of two witnesses, present at the same time.
The Attestation Clause
A professionally drafted Will contains a specific clause that explicitly demonstrates that the Will has been executed in accordance with s9 of the Wills Act 1837 (the attestation clause).
A surprising number of Wills prepared without legal advice have defective attestations clauses or, due lack of supervision, have not been signed correctly by the two witnesses. Where there are errors with the attestation clause, problems can arise following death when the Will is “proved” at the Probate Registry. In such cases it is not uncommon to have to locate one of the witnesses and prepare further legal documents to satisfy the Probate Registry that the Will was correctly executed – it can be an expensive exercise!
To help ensure such problems do not arise with your Will, please contact me at m.kelly@timms-law.com or on 01283 561531.
January 2024