For a Will to be valid it must be signed by the testator, or by some other person in their presence and by their direction; and the witnesses must sign it in the testator’s presence.
From September 2020 a temporary change in the law was introduced so that “presence” includes presence by means of videoconference or other visual transmission.
This new law will be in place until the end of January 2022, unless the Government decides to make it permanent.
Remember – video witnessing is not the same as electronic signature.
Who can witness a Will by video?
There is no change in the rules about who can witness a Will, and the law does not say that video witnessing can only be used if it isn’t practical for the witnesses to be physically present.
We believe that it is sensible and safe always to get the assistance of a legal professional if video witnessing is being considered.
How does video witnessing of Wills work?
One thing has not changed: The Will must be signed on paper. Electronic signature of Wills is not allowed, and neither are electronic witness signatures.
But other procedures will need to be followed to make sure that the law which covers the making of Wills is still followed when it is video-witnessed.
The witnesses need to be able to see the Will being signed. Just seeing the person on screen is not enough – the witnesses have to see the signing.
The Will then needs to be sent to the witnesses. If the witnesses live together, that’s fine; if they don’t, the Will has to go be sent by the first witness to the second.
The testator must be able to see the witnesses sign, and the witnesses must be able to see each other.
This means that there will be more than one videoconference: one where the testator signs and at least one more for the witnesses.
Then it gets sent back to the testator. Of course, that won’t be necessary if the witness is a lawyer who is going to be storing the Will.
The videoconferences or videocalls need to be recorded and stored safely. They may be needed as evidence when applying for probate.
What do we recommend?
Wherever possible, it’s best for Wills to be witnessed by people physically present with (or in sight of) the testator.
If that isn’t possible, then we recommend you contact a lawyer for assistance with video witnessing. Law firms will have the equipment, the space, and the working practices to make it work reliably; and they can give you the best advice on how to approach it, what to do with the recording and so on.
One good tip is to ask a lawyer to be your witness, and perhaps to provide another witness from the same office. The Society for Trusts and Estate Practitioners (STEP) has produced some guidance for lawyers so that all the right precautions are taken. For that reason they will be fully prepared to help.
Why should you use a lawyer for video-witnessing?
There are some important legal questions that have to be considered. The principal ones are that a Will may not be valid if
the testator did not have mental capacity to make it, or
they were under any undue influence.
These points are harder to prove if the witness is not in the room with the testator. For example, they may not know who else is in the room but not appearing on screen. There is a lot that can be missed on the other end of a video call. Solicitors have the expertise to deal with that.
Video witnessing needs
video equipment which is set up and positioned properly;
people at both ends of the call to be on the same system or compatible ones;
software which is capable of recording video and audio clearly;
a stable connection: if you lose the connection during the process then it is quite likely you would have to start again so that the witnesses see what is happening as a continuous act;
nothing to get lost or delayed in the post.
Using a solicitor means that the risk of something going wrong or a mistake being made is much smaller.