As of September 2020, the Wills Act 1837 will be amended to allow the two Will witnesses to be virtually or physically present.
This is a very welcomed announcement due to the challenges placed by those trying to plan for their future during the COVID-19 pandemic. With shielding, isolation and social distancing measures in place nationally since March 2020, those making a Will (testators) and their witnesses were unable to adhere to the existing Will laws and guidelines.
The existing law states that Wills must be made in the presence of two witnesses so that each has a clear line of sight to each signature made. Historically, this has always meant that there must be a physical ‘presence’ among all parties. Questions were raised early in the pandemic about the likelihood of a Will witnessed remotely being legally accepted however, until now, there was no official flexibility from the Ministry of Justice on the matter.
The amended law will allow Wills created between 31 January 2020 and 31 January 2022 to be recognised if it was witnessed using video technology. During the pandemic, some testators took the risk of creating a Will via video and this amendment to the law will provide peace of mind to those individuals that their last wishes will still be respected during these exceptional times.
So, what has changed?
While the process has remained relatively similar to the existing law, other than the new option to witness signatures virtually, the Ministry of Justice has provided four steps to help with clarity and consistency:
Step 1: The testator and all witnesses must have a clear view of all actions that they each make on video. For instance, the camera needs to be positioned in a way that allows for a clear line of sight of the paper being signed and not just the head and shoulders of the testator/witnesses. It is also crucial that the sound and visual quality are clear.
Step 2: Each witness must confirm that they acknowledge their role as a witness of the testator’s Will.
Step 3: Electronic signatures will not be acceptable so the original Will must be taken to each witness for signature within 24 hours or as soon as possible after the process has commenced.
Step 4: Each witness must follow step 1 using the same video technology if they are not in the same physical location as each other. Both witnesses must sign the Will before it is considered valid.
Ministers have reinforced the fact that witnessing via video should only be done as a last resort when meeting in person is either impossible or unsafe. They also remind Will makers that all signing must take place in real-time as using a pre-recorded video at any point will invalidate the process.
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