In summary, the Will must be made voluntarily by a person of sound mind who is aged 18 years or above, the Will must be made in writing and must be signed by the person making the Will (‘the Testator’) in the presence of two independent witnesses who must then sign the Will in the presence of the Testator.
During the Covid-19 pandemic, the latter requirement of signing the Will in the presence of two independent witnesses has proven, in some cases, impossible to adhere to, particularly for those who are shielding or self-isolating.
In response to this, the Government has introduced a temporary order known as The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020. This order, which is currently only set to be in place until 31 January 2022, has the effect of amending the current rules to allow for the signing of the Will to take place by means of videoconference or other visual transmission.
This order has been introduced with the caveat that where people can make Wills in the usual way they should continue to do so.
The Government has issued guidance on making Wills using video conferencing, part of which sets out a 5-stage process for ensuring that the Will is signed in accordance with the law. This 5-stage process incorporates various safeguards in the interests of fraud prevention and includes procedures such as holding the Will up to the camera and displaying this to the witnesses, ensuring that when signing the Will the witnesses have a ‘clear line of sight’ and can see the Testator actually signing, not just their head and shoulders, and requesting evidence of identification if the Testator is unknown to the witnesses.
Step 3 of the guidance sets out that the Will should then be taken to the two witnesses for them to sign, ideally within 24 hours. The guidance recognises that given the current Covid-19 restrictions this may not be achievable; however, this should be done wherever possible.
The guidance also sets out that the video-link must take place in real time and it is advised that the whole process is recorded, with the video recording being retained on file.
As can be seen from this article, making use of these new provisions and ensuring that the Will signing procedure takes place in accordance with the guidance and the law are by no means straightforward. It is therefore more important than ever to make sure that your Will is prepared by a professional who will be able to guide you through this process.
For further advice please call us on 01482 326666 or contact Ellie-May Betts at firstname.lastname@example.org.
Ellie-May Betts is a Chartered Legal Executive specialising in Wills, Trusts and Probate at Hamers Solicitors LLP.
15 January, 2021
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