Remote witnessing of Wills during COVID-19

Ashtons Legal has been very busy helping clients to get their Wills made or updated and signed validly during the COVID-19 lockdown period.

We have been taking instructions with the help of technology by video link and telephone, or sometimes even face-to-face (at a safe distance) in car parks and gardens. Witnessing the Wills and ensuring that they are validly signed has been one of the biggest issues to overcome and involved much lateral thinking about how to comply with the strict legal requirements.

To be valid, the law requires ‘wet signatures’ on the physical Will. The Will maker’s signature must be witnessed by two people present at the same time who then sign in the Will maker’s presence. The courts have confirmed that ‘presence’ involves a clear line of sight – so witnessing through windows and open car doors can be valid.

For some it has been possible to arrange for the team at Ashtons Legal or neighbours to act as witnesses, but not for the most vulnerable or those in hospital. Some people have tried witnessing via video link but the law is currently unclear on whether this is valid, so there is a high risk that Wills witnessed in this way are not legal.

To help with this situation, the Government has announced that it will introduce temporary legislation in September 2020 to permit remote witnessing of Wills. This is the only change it will make to the existing rules, and it will last for two years. The new legislation will be backdated to 31 January 2020, except where a grant of probate has already been issued or applied for where someone has died recently and will last for two years.

The Ministry of Justice (MoJ) has issued guidelines which are available here and the Society of Trust and Estate Practitioners (STEP) has produced a briefing note which is available here.

The draft legislation is not yet available, and there is no guarantee that the expected legislation will be introduced, nor that by the time it is granted Royal Assent it will be as proposed by the MoJ. The provisions must be followed very carefully and they rely on available technology which may not always be practical, nor wise for the most vulnerable. We would advise extreme caution if you plan to witness a Will remotely via video using the proposed new rules – particularly until we have the legislation – and if this is the only way a Will can be witnessed at present, we would strongly recommend signing and witnessing the Will again as soon as possible in the conventional way.

Given the risks involved, we would also recommend that the witnesses are the professionals who drew up the Will. The team at Ashtons Legal will be glad to advise.

We would however still recommend that, unless absolutely impossible, Wills are signed and witnessed in the tried and tested way with witnesses physically present.

Further advice

If you would like to make or amend a Will, please contact Ashtons Legal through this website or call 0330 404 0755 and ask to speak to a member of our Lifetime Planning team.