Video wills: new legislation on making wills to be introduced

On 25 July 2020, The Ministry of Justice published guidance on making wills via video-conferencing, confirming that the government would soon introduce legislation legalising documents made in this way. The legislation will be retrospective and capable of being applied to wills made on or after 31 January 2020¹ and until 31 January 2022².

Having seen a surge in enquiries about will writing in recent months, there has been a real need for us to consider how to abide by the legal formalities for making a will whilst also respecting the newly coined concepts of ‘social distancing’, ‘shielding’ and, of course, ‘lockdown’. My colleague, Matthew Evans, has previously written about his experience of will execution in lockdown.

As they have been for some 183 years, the formalities for a legally binding will are set out at section 9 Wills Act 1837. The Act states that a will must be signed by the testator, or their signature acknowledged, “in the presence of two or more witnesses present at the same time.” (Click here to read our blog on how to witness a will.)

Whilst this announcement does not propose to alter the requirements of section 9, it focuses on temporarily shifting the meaning of the word “presence”. With the absence of case law or court direction to prove to the contrary, until now, physical presence has been considered to be a must. The new changes provide for witnesses to be ‘present’ by video link; though this is intended as an option only where the physical presence of a witness, or indeed both witnesses, is simply not possible.

It is hoped that these legislative changes will assist, albeit as a last resort, individuals who have otherwise struggled to make a will during the pandemic. As with the ‘usual’ position, the requirements for a legally valid will via Zoom, FaceTime or any other video call platform are stringent; particularly important to seek to reduce the abuse of this method.

The Ministry of Justice has, broadly, outlined four stages to the process. For brevity, these have been summarised below, however, the guidance should always be considered in full:

1. All parties are present on a live video link; the testator (referred to by the Ministry as the will maker) and both of the witnesses. The testator must make sure that the witnesses can both see him/her signing, can see one another and understand what is about to happen.
2. Having shown the witnesses the document that they are about to sign, the testator signs and dates the will with the witnesses looking on. The witnesses should verbally confirm that they have seen the testator sign and date the will.
3. The will³ should be taken or sent to the witnesses as soon as possible. The Ministry of Justice state “ideally within 24 hours” though recognise that there may be occasions where a longer periods elapses. It is important to note that the document will not be a legally valid will until the testator and both witnesses also signed the document.
4. On receipt of the will by the witness(es), a further video call must take place and during in which the witness(es) must show the testator the document and then sign the it themselves. This part of the process should be repeated if the witnesses are not physically located together.

It is recommended that each of the video calls is recorded as evidence that the formalities have been complied with and to be called upon in future should there be any questions as to the process followed.

Given the intricacies which are vital to ensuring a legally valid will via video we would recommend that caution is exercised and, wherever possible, appropriate legal advice is sought. If you are looking to make a will, get in touch with our team who make sure your will is written and executed correctly.

¹ There is scope for this later date to be amended in future; either shortening or extending the time frame during which these changes apply.

² Whilst the legislation will apply to wills executed on or after 31 January 2020, it will not apply where an individual has since died and probate has been granted or if an application for a Grant of Probate has already been lodged with the Probate Registry.

³ It must be the same document as was signed by the testator, rather than a duplicate or counterpart.