Witnessing Wills in the Coronavirus Pandemic

For a Will to be valid, it must be signed in the presence of two witnesses. This may cause difficulties when social distancing or self-isolating.

The coronavirus pandemic has, understandably, made more people think about making a Will. Briefly, for a Will be to be valid under the current law, which dates back to 1837, it must:

- be in writing, and signed by the person making the Will (the testator);
- appear that the testator intended to give effect to the Will;
- be signed by the testator in the presence of at least two witnesses; and
- be signed by each witness in the presence of the testator.

It is clear how these requirements may cause difficulties in a time where social distancing, shielding and self-isolation have become a part of our new normal. Legal professionals have had to think of creative ways in which the requirements for a Will to be validly executed can be adhered to in the current circumstances, with Wills being witnessed through windows or in gardens with everyone maintaining at least a two-metre distance from each other.

The government has, however, recognised the challenges that the coronavirus pandemic poses to making a valid Will, and in July 2020, announced that new legislation was to be introduced to allow Wills to be witnessed using video-conferencing. Under the new legislation, the current law still applies, but was amended so that “presence” includes virtual presence.

The legislation applies to Wills made since 31 January 2020, except where:
- a Grant of Probate has already been issued; or
- an application for the Grant of Probate is already being administered.

The legislation was initially only to apply to Wills made up until 31 January 2022. However, the government announced on Tuesday 11 January 2022 that this period has been extended, and the legislation will now apply to Wills made up until 31 January 2024. The guidance does state that this period can be shortened or extended, if necessary, and says that the government will consider whether to change the law permanently in due course.

The guidance makes clear that pre-recorded videos, counterpart Wills and electronic signatures are not permissible. The testator and the witnesses will need to see (virtually) the Will being signed in real-time and they all need to sign the same copy of the Will. This means that the Will will need to be sent to the witnesses separately and ideally, the guidance has suggested, within 24 hours of the Will being signed by the testator. Further video-conferences will then need to take place for the testator to see the witnesses signing the Will. The guidance suggests that, if it is possible, the whole process should be recorded in case the execution, or the validity of the Will is called into question.

A further point to note is that the usual attestation clause, which sets out the circumstances in which the Will has been signed and witnessed may also need to be amended to reflect that the Will has been witnessed remotely.

Whilst the new legislation has been introduced with the intention of remedying the practical difficulties faced by people wishing to make a valid Will in the current coronavirus pandemic, the advice remains that where people can make a Will in the physical presence of witnesses, they should do so - virtual witnessing should be a last resort.

The requirements for making a valid Will are complex, and in light of the new law on video-witnessing, it is paramount that legal advice is obtained to ensure that your Will is legally effective.