For more information about the changes made to your options when creating a Will get in touch with our Private Client Team today on 01284 767766.
Remote witnessing of Wills has been extended until 31st January 2024 – but was it necessary?
Zoom, FaceTime, Teams – these are all by now very familiar to us, and since January 2020, they’re all methods by which legal practitioners are able to remotely conclude their clients Wills.
However, research conducted by the Law Society at the end of 2021 found the majority of practitioners continued to employ the more ‘usual’ methods of witnessing Wills – that is being physically present during the signing process. In fact, some 73% of practitioners surveyed by the Law Society have said they wouldn’t use this method of witnessing, post-pandemic.
Only 14% of practitioners used remote witnessing procedures, with just over half of those practitioners confirming that they’d use this method again, as long as it remained an option.
Despite Covid-19 restrictions, we adapted quickly to the circumstances – becoming inventive with the witnessing process – documents being held in place by windscreen wipers and signed on car bonnets spring to mind.
As the country now finds itself pulling free from the worst effects of the pandemic – and with restrictions easing at a pace, we might question whether these relatively little used measures should have been extended, especially for as long as a further 2 years.
What are the potential pitfalls of remote witnessing?
Current Government Guidance suggests, but does not require, that the whole virtual signing process be recorded and the recording saved. What’s more, witnesses don’t need to see the final Will before it is signed, only the ‘front’ and signature pages. Most Wills have a cover page with the name of the testator, but which don’t contain any provisions from the Will. There is no guidance on what ‘front page’ actually is, meaning there are risks that the main content of the Will could be altered between signing and sending to witnesses.
Even having witnessed the execution of the Will, there’s nothing preventing the possibility of a different signed Will – such as a second Will signed under duress – then being sent to the witnesses for them to sign. This could give rise to a potential claim of undue influence, a risk which could be reduced significantly if the Will is prepared by a professional Will drafter.
There’s also the question of other people being in the room with the testator, but off camera. Normally, you’d have two witnesses who could attest to who else was present, if necessary. If the Will’s validity was called into question, those witnesses would say that they had seen the testator signing the Will, i.e. favouring the validity of the Will. Those witnessing Wills remotely are recommended to ask who else is in the room, though this is clearly not an infallible method.
Have the changes been effective?
Perhaps unsurprisingly, some 73% of practitioners surveyed by the Law Society have said they wouldn’t use this method of witnessing Wills, post-pandemic.
It can’t be denied that the measures have of course helped those who simply couldn’t complete their Wills due to isolation – but these remain very much in the minority, diminishing day by day.
While the continued legal recognition of video witnessing Wills may be a pragmatic solution for a small minority of the more vulnerable in our society, this is likely to fade away as we all continue to navigate our way out of the pandemic.
Above all, remote witnessing of Wills should very much continue to be used as a last resort. Physical witnessing of Wills is strongly encouraged where it is safe to do so.
On balance, we’d strongly advocate that video witnessing of Wills is reserved only for the most extreme circumstances where it’s simply impossible to meet physically to sign Wills.
In normal circumstances, we’ll work with you to organise signing up in the physical presence of your two witnesses. If video witnessing is the only option, then we consider it essential that you use a solicitor to oversee and be a part of the process.
