Article by our Solicitor Althaf Hussain 07.09.2020
A Will has to be witnessed to become a legally valid document. With current restrictions on movement and meetings, arranging for a Will to be witnessed by two individuals can be a more difficult process than normal.
In England and Wales new laws are to be passed, to allow a Will to be witnessed remotely. Helpfully the new legislation will be backdated to 31 January 2020 to cover any Will which has been witnessed remotely during the pandemic and resulting lockdown periods.
A Will must be signed ‘in the presence of’ at least two witnesses, who are together at the same time. This process has become extremely difficult, and sometimes impossible, given the guidance on isolating and shielding as a result of the pandemic. In addition, many Solicitors have been working from home and therefore have been unable to offer appointments. As a result of these challenges, some have used online meeting tools to arrange for Wills to be signed, hoping that in these very unusual circumstances the concept of ‘in the presence of’ will be interpreted appropriately by the authorities.
The new rules confirm that signing a Will remotely will be accepted and legal, as long as the sound and video quality allows all parties to see and hear what’s happening clearly and the correct procedures are followed. As a result, ‘in the presence of’ will cover any Will witnessed at a physical meeting or through a virtual link. To avoid later scrutiny from the Probate Courts, those taking part should make a statement to the effect that the witnessing is taking place virtually, and ideally a copy of the recording should be stored to help document the process.
It is expected that the new law will be kept in place until at least 31 January 2022, although this may be reviewed depending on the long term impact of the pandemic.
This is a sensible and a pragmatic step, given the circumstances, and offers a good solution if it’s not possible for a Will to be witnessed in the usual way. It’s important to note that, to avoid any risk of challenge, remote witnessing should be used very much as a last resort, with physical witnessing still the preferred option.
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