New Will witnessing legislation

The Coronavirus Crisis has brought with it challenges for most professions. One of those faced by the legal profession has been the issue of how to safely witness the making of a will whilst maintaining Social Distancing measures – particularly where the person making the will is shielding or self-isolating.

The law which sets out how a will must be signed and witnessed goes back to 1837. For a Will to be valid it requires that, as well as the person signing the Will (the Testator), there should be two independent witnesses present. The two witnesses should (at the same time) be in the presence of the Testator when the Will is signed and the witnesses must then sign in the presence of the Testator and each other. If a beneficiary or their spouse acts as a witness then they will not receive their gift under the will so family members are not usually recommended to act as witnesses

Whilst generally being a good safeguard against coercion or undue influence, in these times of social distancing measures these prescriptive rules have given us lawyers a few challenges, particularly when you consider that as a service we will usually offer to act as witnesses to our clients’ Wills.  These days for practical reasons it may not be possible to do so.

The Government has recently announced measures to relax the rules in England and Wales. At first sight this might appear a welcome concession but for many reasons the new measures should be approached with caution.

The new legislation enables individuals to video-witness the execution of their Wills if they are unable to observe the normal formalities. Therefore, if someone is shielding and there is no feasible way to arrange for witnesses to be there, they can execute their Will in the presence of witnesses by video link and it will be legally valid.

It has to be said however that this proposal presents its own challenges. Removing the need for witnesses to be physically present gives rise to a greatly increased risk of challenge, opportunity for abuse and doubt as to whether the procedure has been followed correctly.

The precise details of the legislation is not yet clear. It will not come into force until September 2020 although we understand that it will apply retrospectively to the period since the 31^st January 2020.

The new remote method of witnessing should not be a substitute for the conventional method of physical witnesses. The remote method should only be used in an emergency when conventional witnessing is impossible. Extreme caution is required when taking this course of action.

Here at Agri Advisor we have done and will continue to do everything we can to enable our clients to continue make their Wills during this crisis. This has seen members of our staff witnessing Wills through open windows, in gardens and on car bonnets! We advise that arrangements like these for the physical witnessing of Wills are vastly preferable and should always be considered first. Any video witnessing arrangements should certainly not be undertaken without appropriate legal advice.

Making a Will can be a complex issue and is never straight forward so if you would like to discuss any aspect of the process please get in touch with one of our team of experienced lawyers.

Arwyn Reed, Senior Associate Solicitor – 02921 675965