The End of Video Witnessing for a Will?

A Will is a very important legal document and must be prepared, executed and witnessed in a certain way to be valid.

The starting point under section 9 of the Wills Act 1837 is that:
“No will shall be valid unless-

• (a) It is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
• (b) It appears that the testator intended by his signature to give effect to the will; and
• (c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• (d) Each witness either-
• (i) attests and signs the will; or
• (ii) acknowledges his signature,
  in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

Witnessing of a Will

A Will has to be witnessed in the presence of two independent witnesses. They cannot be the spouse/civil partner or a beneficiary of the Will (or spouse/civil partner of the beneficiary), but an executor can be a witness.

Both the witnesses must be present at the same time when the will is executed by the testator.

The witnesses do not need to read or know about the contents of the will itself.

Normally with physical witnessing, the testator and the witnesses are in the same room.

However, it was recognised that this was not always possible during COVID-19 with the imposition of self-isolation or social distancing.

The requirement in such cases is that the testator and the witnesses each have a clear line of sight of each other. The following are some examples of this in practise.

• 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
• witnessing outdoors from a short distance, for example in a garden

Video Witnessing

An alternative to physical witnesses is virtual video witnessing.

On 25 July 2020, the government issued guidance confirming that they would be making changes to legalise the remote witnessing of wills following the problems arising from COVID 19.

In conjunction with the government guidance issued on 25 July 2020, the Law Society has also produced a guide for practitioners (last updated on 6 June 2023)

New legalisation was brought in September to effect these changes with retrospective effect from 31 January 2020. The changes were initially in place until 31 January 2022 but on 12 January 2022 this was extended until 31 January 2024.

They stressed however that “the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so.”

The statutory instrument amended the Wills Act 1837 to stipulate that where wills must be signed in the ‘presence’ of at least two witnesses, their presence can be either physical or virtual by means of video conference or other visual transmission.

The technology used must however be fit for purpose – you must be able to see and hear what is happening at the time.

Witnessing pre-recorded videos will not be permissible – the witnesses must see the will being signed in real-time.

If possible, the whole witnessing process should be recorded and the recording retained. This is especially useful if there was a challenge to the validity of the will later on.

31 January 2024

The government has not extended the date for video witnessing beyond 31 January 2024 which was only ever supposed to have been an interim emergency measure.

However it is not clear how much uptake there was in any event for this method given the concerns that it could be open to abuse. This method of witnessing was also more costly and time consuming then the traditional method of the testator attending a solicitor’s office where two witnesses could sign whilst in the same room.

The Law Commission has sought views on whether

• electronic wills should be allowed in light of technological and societal developments, ensuring the law remains fit for purpose
• marriage or a civil partnership should continue to revoke a will, given concerns about predatory marriage and vulnerable people.

The consultation ended on 8 December 2023 so watch this space for any proposed recommendations to bring the Wills Act 1837 into the 21st century.

Final Words

Whilst the law does need to move with the times and this was accelerated during COVID 19, the potential for abuse cannot be emphasised enough. The advice from the government remains that where people can make wills in the conventional way they should continue to do so.

Time will tell whether satellite litigation arises from wills which were witnessed remotely as a result of COVID-19

For expert advice on the legal methods of witnessing a will signing, contact our team of dispute resolution and wills writing specialists on 0330 822 3451 or request a callback online.