An update on the witnessing of wills

Matt Parr of Shakespeare Martineau was kind enough to write an article for our latest newsletter, summarising the importance of, but also how it’s still possible in the current climate to have both Wills and Lasting Power of Attorney drafted. Within a few days, showing how quickly things can change in the current climate, it was announced that video witnessing of Wills would be allowed. Below he gives us his summary and thoughts on the changes – basically a warning to beware!

We’re not authorised to provide advice in these areas, but we’ll happily put you in touch with someone who is able to provide help, guidance and advice.

Following a recent blog we released relating to the issues of signing Wills correctly during lockdown, the Government have announced an upcoming change in legislation which will allow for Wills signed in front of witnesses by video conference to be held legally valid.

The legislation, which is yet to be introduced (or even written), is to be retrospectively applicable to Wills signed in this manner since 31st January and will apply in theory to those signed in this manner until 31st January 2022. The legislation will not apply, however, to Wills where Grant of Probate has already been granted nor where an application for Grant of Probate has already been submitted and is being processed at the probate registry.

The essence of the new legislation will seek to change the requirement of “presence” for the purposes of s.9 Wills Act 1837 to enable witnesses to be “present” via video conference rather than physically with the testator.

The anticipated essential requirements for the new signing process include:

– The testator and the witnesses having a clear line of sight of each other at each stage of the signing process.
– When each witness signs, the testator can see the witness signing the Will.
– Both witnesses see the testator signing the Will in the presence of each other.
– When the testator signs their Will, they also include, the date on which they have signed it.

While this new legislation will no doubt prove invaluable to the very vulnerable, or those that are affected by COVID-19 and wish to ensure they do not come into contact with any other individual, remotely witnessed Wills should not become the ‘new normal.’

It is anticipated that there will be an increase in the number of claims against estates from disgruntled beneficiaries when it becomes apparent that the Will was signed by remote witnesses, particularly, if there are other factors in play such as a frail or vulnerable testator.

The process of remotely witnessed Wills could give rise to an increased number of Wills prepared under duress or fraud. Who is to say who is out of sight of the camera in the same room as the testator placing emotional pressure on them to sign the Will? For example.

When you can arrange to have two independent witnesses physically present with you when you sign the Will, you should arrange this instead of relying on this new method. If you do need to use this method enlist the help of a STEP member solicitors who can assist in ensuring the process is done correctly, take full attendance notes of the meetings and advise of any likely repercussions for your estate if the Will is challenged.

Advisors at Shakespeare Martineau would be happy to assist you.

Matt Parr is an associate solicitor at Shakespeare Martineau and he works with individuals and their families to help them negotiate the many pitfalls they can encounter when planning for their future by providing pragmatic, bespoke advice.

Tel: 01908 304 420
Mobile: 07976 412698

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