The law which sets out how a Will is to be signed in order for it to be valid stems back to 1837
The Wills Act 1837 sets out that for a Will to be valid it must be signed in the presence of two independent adult witnesses, if this is not complied with the Will is deemed to be invalid. This means that if there was a previous Will that is the Will which takes effect. And if there is no other valid Will then the estate will pass under the rules of intestacy.
Definition of ‘in the presence of witnesses’
There has been copious case law since 1837 which has confirmed that ‘presence‘ means there must be a clear line of sight.
How does this fit in with today’s world and the technological advances since 1837?
The simple answer is that it does not.
In recent months during the covid-19 pandemic, many solicitors have witnessed Wills through windows to ensure that all parties have been kept safe, many have questioned whether witnessing Wills electronically complies with legislation, the answer is that it does not.
Video conferencing and witnessing Wills
A statutory instrument will be laid in September 2020 which will allow Wills to be witnessed electronically by Zoom, FaceTime, and other online video conferencing methods. This law allowing electronic Will signing will be backdated to 31st January 2020.
Witnessing Wills electronically should still be the last resort, and may not be appropriate in all circumstances.
Whilst the new legislation, which has been rushed through as a result of the current pandemic, will allow those who are shielding or have difficulty finding witnesses they can see in person to validly sign a Will it does leave vulnerable people open to abuse.
Use of video calls does not allow a witness to see if there is anyone else in the room with the testator who may be placing them under pressure to sign the Will.
There is also a risk that the process of witnessing the Will may not be completed before the testator dies.
It is likely that there will be an influx of claims of invalid Wills in the future as a result of the new legislation.
Cunningtons and electronic Wills
At Cunningtons we continue to act for clients all over the world. When it comes to making your Will, we can take instructions via video link and email drafts of Wills for approval before either sending the finalised version for signing or arranging an appointment to sign them at the office.
We will witness Wills electronically but only in limited circumstances as a last resort.