With news breaking that the use of video remote witnessing of Wills will become law – and backdated for Wills signed from 31 January 2020 – some people may be breathing a sigh of relief that emergency actions they had to take during the ongoing coronavirus pandemic, especially for those needing to shield, will be legally valid.

For others, the prospect of remote witnessing of their Wills going forward offers a new and potentially quicker and easier way for them to get their Will in place – especially for busy people, and with continued social distancing.

Whilst the news that the law is looking to modernise and move to recognise the opportunities of our increasingly tech-savvy world is to be welcomed, the risks also need to be considered.

The risks of remote witnessing

The main downside of a remote witnessing situation is that as an adviser or other observer, including a witness to the Will, you can only confirm what you can actually see, which will be limited to your screen and the camera angle and scope of the video feed. You cannot see the whole room and you cannot see what – or, more particularly, who – might be behind the screen.

For a Will to be valid, the person making the Will (the Testator) must be over 18, have the relevant mental capacity to make a Will (known as Testamentary Capacity) and the Will must be in writing and signed by the Testator in the presence of two independent witnesses who do not (and whose spouses do not) benefit from the contents of the Will. Whilst this process provides legal validity, Wills can be challenged on a number of grounds by disappointed beneficiaries who feel they should have been included or have received more than the Will provides.

Grounds for challenge include allegations that a Testator did not understand or approve the contents of a Will, or that they were subject to undue influence from a third party in the preparation of their Will. Whilst remote witnessing abilities will enable a Testator’s capacity and their understanding of the Will to be assessed, the limitations of video conferencing’s ability to confirm categorically that no one else was present – and that the testator was, therefore, making the Will in the absence of pressure or ‘support’ in setting out their understanding – is necessarily limited, and as a result, may be open to challenge.

The future for Will signing

The new rules are to be welcomed, but it appears sensible that, wherever possible, the current in-person signature rules continue to be followed and, if the remote witnessing rules are required for an emergency situation, it would be sensible for a Will to be re-signed in the physical presence of two witnesses as soon as the emergency situation to best protect the full implementation of a Testator’s wishes. This will enable witnesses to give a much fuller account of the circumstances of the signature of the Will – including whether anyone else was present or not – and may alleviate concerns or allegations. This will be particularly beneficial for Testators with more complex circumstances, where they may be looking to exclude a family member from benefiting or making substantial changes to previous Wills.

For more information

If you would like advice about the preparation of your Will or how the new rules might affect you, please contact Donna Holmes.