By Katherine Magee
On 25th July, the Government announced a temporary change to the current law for making a Will. It relates to the requirement that a Testator (the person making the Will) and two witnesses must be present when the Will is signed. The change is until 31st January 2022.
Under the current law, a witness must have a clear line of sight. This could mean:
Witnessing through a window or open door of a house or a vehicle;
Witnessing from a corridor or adjacent room into a room with the door open; or
Witnessing outdoors from a short distance, for example in a garden.
During the lockdown, some people have turned to video link software, such as Zoom or FaceTime. The new change in law reassures the public that wills witnessed in this way will be valid.
The Testator must act with capacity and in the absence of undue influence. Where possible, the video should be recorded and retained, but this is not obligatory. The Testator may be alone, and the two witnesses may either be together or alone, but all three must be able to see and hear each other in real-time.
The key feature is that eventually the Will must be signed by both witnesses and the Testator. This must happen live via video link, and if possible be recorded.
Simon Davis, President of the Law Society, hopes that this change will help to overcome the challenges that some members of the public have faced when making wills during the pandemic.
However, there are potential problems with the new procedure, particularly the requirement to sign the original document. Not only does this pose a risk for those who are self-isolating or vulnerable, but it also causes a delay between the Testator signing the document and the witnesses signing. In this regard, there is a risk that the Testator could die before witnesses have signed the document. There is also a risk that the document could be lost, or that undue influence may be exerted by people off-camera. The advantages of video witnessing are thus not well defined.