Covid-19 Changes to Witnessing a Will

If you’d asked a Will solicitor back in late 2019 if there would be changes made to the 1837 Will Act most experienced Will lawyers would have said no. However, Covid-19 is bringing about changes to how Wills are witnessed with some saying that it’s taken a global pandemic to change a law made in the 1800’s. With news of local Covid-19 lockdowns being imposed in Greater Manchester and parts of Lancashire and fears that the localised government Covid-19 related constraints will be extended into Cheshire the changes are broadly welcomed by Cheshire Will solicitors.

Cheshire online Will solicitors

If you need help making a Will or changing your current Will then the Holmes Chapel based Wills and estate planning team at Evolve Family Law can help you.  Call us or complete our online enquiry form and we can set up a telephone appointment, face to face appointment, video conference, or Skype call for you.

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Witnessing a Will

A Will has to be witnessed in accordance with the law. If the Will isn’t witnessed properly then the Will may be contested. If the Will is found by the court to be invalid as it wasn’t witnessed properly then your estate could pass under the provisions of an earlier valid Will or pass under intestacy rules. That means that your family, loved ones or nominated charity may not end up with a share of your estate. That’s why Will solicitors say it is essential that Wills are executed and witnessed properly.

Under the 1837 Wills Act a Will has to be witnessed by:

• Two witnesses
• The witnesses shouldn’t be beneficiaries of your Will
• The witnesses should be present when you sign the Will and see you sign the Will.

The Will witness requirement meant it was tricky during the height of the Covid-19 pandemic for people to arrange for their Wills to be witnessed especially when Will solicitors were forced to work online because of the government imposed lockdown and the difficulty of getting neighbours to witness Wills whilst practising safe distancing or shielding.

The remote witnessing of Wills

To help people wanting to put their personal and financial affairs in order during the Covid-19 outbreak the government has said that it will change the law to allow Wills to be witnessed remotely for the next two years or longer if required.

The government recognises that there is a danger that the remote witnessing of Wills could result in fraud or abuse of the elderly or vulnerable and has therefore issued guidelines to Will solicitors and to the general public on the remote witnessing of Wills.

For those of you who have already executed your Will and are worried that the execution was carried out correctly and is valid then the best thing is to speak to a specialist Will lawyer. The good news is that the government has said that the Will witnessing reforms to allow remote witnessing of Wills is to be backdated to 31 January 2020 provided that:

• The Grant of Probate hasn’t already been issued
• The application is already in the process of being administered.

The new law will remain in place as long as necessary and will apply to Wills made up to two years from when the legislation comes into force (the 31 January 2022) but this period could be shortened or extended if deemed necessary by the government.

It should be noted that although the government intends to change the law to allow remote witnessing of Wills the government has said that the use of video technology should be a last resort and people making or changing their Will should continue to arrange physical witnessing of the execution of their Will where it is safe to do so.

Government guidance on making Wills using video-conferencing

The government guidance on the remote witnessing of Wills applies to both Wills and codicils (a supplementary document that is sometimes used to make minor changes to a Will rather than creating a totally new Will).

The guidance reminds Will solicitors that a Will or codicil isn’t valid unless:

• The Will or codicil is in writing and
• The document is signed by the testator or by some other person in the testator’s presence and at their direction and
• The testator has capacity to make the Will
• The testator intended by their signature to give effect to the Will and
• The testator’s signature was made or acknowledged by the testator in the presence of two or more witnesses who were present at the same time and
• The two witnesses attest and sign the Will
• The witnesses have a clear line of sight and can see the testator sign the Will (even if their line of sight is through a window or in light of the planned law change remotely through video conferencing).

Video-witnessing or remote witnessing of Wills

If a Will is witnessed remotely then the same rules apply to the valid execution of a Will save that the witnesses witness the Will being signed remotely. This doesn’t have to be by video conferencing as it could, for example, take place over Zoom or Facetime.

The important point is that the person making the Will and their two witnesses each have a clear line of sight of the signature to the Will in real time. It is best that the remote signing and witnessing process should be recorded and the recording retained in case the Will is challenged.

The original Will should be in the possession of the testator when it is signed and the signature witnessed remotely. However, the two remote witnesses still need to sign the Will so the Will should then be taken to the two witnesses for them to sign, preferably within twenty four hours unless a longer time period is unavoidable. When the witnesses sign the Will the testator should ideally remotely see the two witnesses sign the Will and acknowledge that they have seen the two witnesses sign. As part of the remote witnessing process the Will should be held up so the Will can be seen.

The government is making the changes to the law on witnessing Wills as the government recognises the importance of writing a Will and the peace of mind that a Will can give to both the testator and their loved ones.

Our Online Cheshire Will and Estate Planning Solicitors

For help writing a Will or with estate planning call the Will and estate planning solicitors at Evolve Family Law or complete our online enquiry form. We can arrange a telephone appointment, video conference or Skype call to discuss how we can help you with writing a Will or changing your existing Will.