Witnessing wills via video conferencing: Golden rules for the 21st Century

The Private Wealth Disputes team, looks at how advances in technology, coupled with the difficulties presented in witnessing wills in lockdown, have led to a relaxation of the rules.

Since lockdown commenced across the country on 23 March 2020, many practitioners will, like me, have asked themselves whether it may be possible to properly sign and witness a will via video conferencing, having never had to consider such a question before. Having researched the point back in those dark days early on in lockdown, I quickly confirmed my instinct that it probably wouldn’t be possible.

Practitioners have therefore been required to work around the social distancing measures (relying on their “key worker” status) since then, often by taking instructions remotely and then arranging for wills to be witnessed through windows and in back gardens.

However, on 25 July 2020 the Ministry of Justice published guidance on the making of wills via video conferencing, which my colleague Lianne Jones discussed recently.

While the guidance may come as welcome relief to those preparing wills, as a lawyer specialising in will disputes, my instinct was to look critically at the guidance and consider potential pitfalls which it could present to those involved in writing wills or those who witness such wills over video conferencing.

These new pitfalls reflect advances in technology and were never envisaged by the 183 year old legislation: the Wills Act 1837.

As such, I’ve set out some new “golden rules” which people should consider when using video to witness wills:

1. Is it necessary?
   The guidance states that “the advice remains that where people can make wills in the conventional way they should continue to do so”. If there is no absolute need for the will to be witnessed via video conferencing, then a will should be witnessed in the conventional way; sheer convenience shouldn’t be a reason for witnessing a will via video conference. The guidance is temporary and acknowledges that it has been difficult for those shielding and self-isolating to abide by the existing procedure.
2. Act fast.
   The need to prepare a will promptly is a concept which is familiar to professional will writers. However, if you are acting as a witness to a will via video conferencing, you will now also be under pressure to sign the will promptly after it comes into your possession (the guidance states that the will should be passed to the witnesses ideally within 24 hours) and, if necessary, pass the will on to the other witness for them to sign also. As ever, the will won’t be valid until it has been signed by the will maker (formally known as the “testator”) and all of the witnesses. Should a witness delay in adding their signature to the will (and, if necessary, passing it on to the second witness) they may be liable to the would-be beneficiaries of that will if the testator were to die in the period of their delay.
3. Ensure you record the signing of the will.
   Many common video conferencing platforms allow for conferences to be recorded. If any dispute arises in future, you’ll have a clear record of the testator’s words and actions on the day that the will was signed. If a dispute arises over the validity of the will, the video could then be used as evidence of its execution and any other material factors. The rules remain the same in that both witnesses should have a “clear line of sight” of the testator signing the will. As such, witnesses should physically see the testator signing the will within the frame of the camera.
4. Ensure that the technology to be used is reliable.
   If lockdown has taught us anything, it’s that while video conferencing has become essential for many of us, it isn’t infallible. Make sure Wi-Fi connections are stable, technology is fully charged or plugged in and everyone involved in the process knows how to use it, and ideally how to fix problems if they occur. STEP, the international organisation for trust and estate practitioners, has produced a helpful briefing note which explains that where the witnesses cannot see the testator at the time they sign the will, whether because the connection is lost or because they move out of frame, the testator is still able to acknowledge their signature in the presence of both of the witnesses simultaneously, by holding up their signature to the camera and showing it to the witnesses once a connection is re-established.
   
5. Stay alert!
   Finally, and as we’ve been told all too often lately; stay alert. That is to say, stay alert to all the risks which have always existed when it comes to the preparation and execution of wills. The likelihood of a challenge to the validity of a will witnessed via video conferencing is likely to be higher than that of a will witnessed conventionally. Claims of lack of testamentary capacity, lack of knowledge and approval of the will, undue influence and fraud are a more real risk today than they have ever been, even before the introduction of video witnessing. STEP recommends asking those in the vicinity of the testator (seen or unseen) to introduce themselves, using an appropriate attestation clause (the clause which confirms who signed and how and generally found at the end of a will), asking the testator open questions and ensuring that any will witnessed via video conferencing is re-signed in the conventional manner as soon as possible as just a few ways in which the risk of a challenge to the validity of a will can be reduced.

If you’re considering making a will, regardless of whether or not you intend using video witnessing, you should ideally speak to a professional.