Long overdue changes to the legislation governing the preparations of Wills have been announced by the Ministry of Justice. The changes address difficulties posed by the Coronavirus pandemic and enable the signing of Wills to be completed remotely, via video conferencing.
How have Will signings been affected by lockdown?
Designed to minimise the incidences of fraud, section 9 of the Wills Act 1937 lays down the strict requirements that must be met for a Will to be valid. It requires that a Will be:
- In writing and signed by the will maker (testator) or by someone at their direction;
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and,
- Each witness either attest and signs the will or acknowledges his signature in the presence of the testator.
Physical presence is what is required, with the law holding that a clear line of sight is necessary. During lockdown, that has posed a significant obstacle for those wanting to execute a valid Will, with many having to attempt executions through windows and doors, in adjacent rooms or outside at a safe distance. None of those solutions were without their health risks.
Whilst there has been some lively debate about whether presence and clear line of sight permitted witnessing over video conferencing software, in the absence of a binding decision from the courts, the position on signing Wills remotely remained unclear. What was clear was that Wills executed in that way were more likely to be challenged by disappointed beneficiaries.
What are the proposed changes?
Under the new proposals, provided the person making the Will and their witnesses have a clear line of sight of the writing of the signatures, signing Wills remotely via video-conferencing will be permitted.
The Government has issued detailed guidance on the process, which should be followed closely to ensure there is no prospect of execution being invalid.
There are some limits to the proposed changes:
- Pre-recorded videos of the signing of the Will will not be permitted;
- Electronic signatures have been considered but are not permitted; and,
- Equally, the signing of counterparts (where each party has a separate copy of the Will which they sign and together these would create one valid Will) was also considered but not permitted.
These changes are not permanent
These are temporary changes; it is envisaged that they will remain until 31 January 2022 unless extended or shortened. Most importantly, however, they will be backdated to 31 January 2020 meaning that any Wills that were executed by way of video-conferencing will be valid (although presumably if the process did not closely follow the above guidance, there is room to call the execution into question).
This guidance may curtail the surge in Will challenges some were forecasting on the basis a Will had not been validly created during the Coronavirus pandemic. However, there are various grounds on which the validity of a Will can be challenged even if it has been executed properly along with other claims that can be regardless of whether there is a valid or not.
If you have any concerns about the distribution of an estate or the validity of a Will our specialist advisers in the Inheritance and Trust Disputes team can help you.