Who should read this guidance
This guidance is aimed at:
- all solicitors who advise clients on making a will, and
- those obtaining probate or administering estates
This guidance explains the new, temporary process introduced by the government to allow the formal requirements of the Wills Act 1837 to be met where two people witness a will using live action video-witnessing.
Use of terminology
In this guidance, video-witnessing means live action video-witnessing. The change in the law does not allow witnesses to watch a recording of the testator signing their will or vice versa. Witnessing must still be undertaken in real time.
The coronavirus pandemic has led to a series of lockdowns since March 2020 which impacted businesses across England and Wales, including law firms.
The lockdown introduced significant challenges regarding how wills could be safely witnessed while following government guidelines on social distancing.
Our preferred approach to addressing these difficulties is that judges should have dispensing powers to recognise the deceased’s intentions where strict formalities for making a valid will have not been followed. This would have required primary legislation, however, time for which is currently limited, and so the government has decided to allow temporary remote witnessing in the shorter term.
On 7 September 2020 the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952 (the Order) was laid before Parliament.
The Order has been made under an enabling power in section 8 of the Electronic Communications Act 2000. The Order came into force on 28 September 2020 and amends the Wills Act 1837 to allow video-witnessing of wills.
The advice from the government remains that where people can make wills in the conventional way they should continue to do so.
Making a will where video witnessing will be performed, or obtaining probate or administering an estate where a will was video-witnessed or said to be video-witnessed, introduces a further level of risk which solicitors and firms need to assess and manage.
The Order came into force on 28 September 2020.
The Order, as drafted, will apply to wills made on or after 31 January 2020 and on or before 31 January 2022. The expected duration of two years is consistent with other measures introduced to deal with the effects of the pandemic.
There are specific measures relating to the validity of wills witnessed under the Order and how such wills interact with grants of probate and letters of administration where the testator died after 31 January 2020.
The specifics of these measures and how practitioners may wish to mitigate risks associated with them are reviewed further below.
The Order introduces the ability to execute wills through a live-action video-link.
It’s a matter for individual practices to assess the risk of video-witnessed wills both in terms of will-writing and obtaining probate or administering estates.
Here are some non-exhaustive examples of matters you may wish to consider before supervising the execution of a will by video-witnessing or providing guidance on video-witnessing a will:
- the Order should only be relied upon as a last resort, for example where a testator is in isolation in hospital and medical staff are unable or unwilling to act as witnesses, or where circumstances support a solicitor acting as a witness but attendance in person is not possible
- consider the urgency of the testator’s situation and if there is sufficient time to pass the original document between the testator and witnesses, as is required under the Order – in cases of imminent need (for example, a deathbed will) video-witnessing may not be a viable option and care should be exercised as to what is in the client’s best interests
- after having read the rest of this guidance, consult your compliance office for legal practice (COLP) (who may wish to consult the practice’s insurer) to ensure you have adequate indemnity insurance and processes and procedures to protect yourself and your firm from the risk due to the novel measures the Order permits
- carefully consider the extent of your retainer in specifically describing your obligations as to supervision of the making, and storage, of any video recordings
- the Order does not require recording of the video-witnessing, but we recommend recording nevertheless.
- consider the method and sustainability of any method of storing a record of a video-witnessing
- consider any additional cost in delivering a will service to include video-witnessing and ensure your client is aware of additional costs to be incurred at the outset and what will happen if this changes throughout the retainer
- the method and timing of transportation of the will between the testator and witnesses between video-link sessions should be quick, secure and ideally take less than 24 hours – regular post should be avoided as a means of transportation
Will making and execution
There are several practical considerations you should be aware of when video-witnessing a will or advising upon how to video-witness a will.
Video-witnessing a will
The government issued guidance on 25 July 2020 and sets out five recommended stages to follow.
It’s recommended that solicitors read the government guidance in full and not only the extract below in isolation.
Solicitors are also reminded that the statutory instrument only seeks to change the law about the presence of witnesses.
In all other respects, the law about execution of wills remains unchanged. The government guidance should therefore be read in this material context.
Attestation clauses for video-witnessed wills
A clause stating that a document has been executed in the presence of one or more witnesses (who attest the execution). The attestation clause confirms that the relevant requirements of a will have been met.
Attestation is required under section 9 of the Wills Act 1837. Although the inclusion of a particular form of an attestation clause is not necessary for a will to be valid, it can make the process of obtaining a grant of probate more straightforward as it raises the presumption that the will was properly signed and witnessed.
In the absence of such a clause as the one below, the Probate Registry may require further evidence that the testator intended and approved the contents of their will, for example, through an affidavit from one or both witnesses.
The following specimen attestation clause has been provided by the Ministry of Justice as a suitable form of words with the aim of assisting practitioners, although it is not intended to be prescriptive.
We note that it’s unusual in practice for an attestation clause to extend beyond points (1) and (2) in the example below.
Example clause suggested for video-witnessed wills
The law does not prescribe any particular attestation clause for insertion into a will. However, the chosen clause should, as a minimum, make clear that the document was properly witnessed, although it may also deal with other formalities.
The following example may be helpful in drafting satisfactory clauses.
We, the undersigned testator and the undersigned witnesses, respectively, whose names are signed to the attached or foregoing instrument declare:
(1) that the testator executed the instrument as the testator's will;
(2) that, [on x date], in the presence [by video conference] of both witnesses, the testator [signed the instrument]/[ acknowledged the signature already made on the instrument]/[ the instrument was signed by [X/another] in the physical presence of the testator as directed by the testator];
(3) that, to the best of our knowledge and belief, the testator executed the will as a free and voluntary act for the purposes expressed in it;
(4) that, to the best of the witnesses' knowledge and belief, the testator was of sound mind when the will was executed.
Additional clauses may be added if necessary:
If the testator is blind:
(5) that the will was read to the testator by [X] in the testator’s [physical] presence and in the presence [by video conference] of both witnesses to who it appeared that the testator understood and approved of the contents.
If the will is translated:
(6) that the will was translated to the testator by [X] in the testator’s [physical] presence and in the presence [by video conference] of both witnesses to who it appeared that the testator understood and approved of the contents.
- 1, 3 and 4 are not changed by the video-witnessing legislation but are provided here for context
- On 2, whilst the legislation refers to ‘video-conference or other video transmission’, we feel ‘video conference’ is a sufficient shorthand term for use in the attestation clause
- Words are given in brackets to indicate where they may be removed or need to be inserted, depending upon the context and the intended meaning
Signing and witnessing a will by video-link
Extract from the Ministry of Justice's guidance on making wills using video-conferencing as published 25 July 2020:
"Signing and witnessing by video-link should follow a process such as this:
- The person making the will ensures that their two witnesses can see them, each other and their actions.
- The will maker or the witnesses should ask for the making of the will to be recorded
- The will maker should hold the front page of the will document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well.
- By law, the witnesses must see the will-maker (or someone signing at their direction, on their behalf) signing the will. Before signing, the will-maker should ensure that the witnesses can see them actually writing their signature on the will, not just their head and shoulders.
- If the witnesses do not know the person making the will they should ask for confirmation of the person’s identity - such as a passport or driving licence.
The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the signing of a legal document. Ideally, they should be physically present with each other but if this is not possible, they must be present at the same time by way of a two or three-way video-link.
- The will document should then be taken to the two witnesses for them to sign, ideally within 24 hours. It must be the same document (see Counterpart documents).
- A longer period of time between the will-maker and witnesses signing the will may be unavoidable (for example if the document has to be posted) but it should be borne in mind that the longer this process takes the greater the potential for problems to arise.
- A will is fully validated only when testators (or someone at their direction) and both witnesses have signed it, and either been witnessed signing it or have acknowledged their signature to the testator. This means there is a risk that if the will-maker dies before the full process has taken place the partly completed will is not legally effective.
The next stage is for the two witnesses to sign the will document – this will normally involve the person who has made the will seeing both the witnesses sign and acknowledge they have seen them sign.
- Both parties (the witness and the will maker) must be able to see and understand what is happening.
- The witnesses should hold up the will to the will maker to show them that they are signing it and should then sign it (again the will maker should see them writing their names, not just see their heads and shoulders).
- Alternatively, the witness should hold up the signed will so that the will maker can clearly see the signature and confirm to the will maker that it is their signature. They may wish to reiterate their intention, for example saying: “this is my signature, intended to give effect to my intention to make this will”. [Note: It is presumed that this should read “this is my signature, to confirm that I have witnessed this will.”]
- This session should be recorded if possible.
- If the two witnesses are not physically present with each other when they sign then step 4 will need to take place twice, in both cases ensuring that the will maker and the other witness can clearly see and follow what is happening. While it is not a legal requirement for the two witnesses to sign in the presence of each other, it is good practice.
Consideration may be given to the drafting or amending of the attestation clause in a will where video-witnessing is used. The attestation clause is the part of the will that deals with the witnessing of the will makers signature. For video-witnessed wills it may be advisable to mention that virtual witnessing has occurred, along with details of whether a recording is available.”
We recommend you consider some additional practical considerations:
- record the circumstances and rationale for choosing to have a witness present by video rather than in person, with particular regard to any circumstances preventing attendance in person
- ensure so far as possible stable connections to video-link technology during a video-witnessing and where any video-link may temporarily fail, take steps to attest any signatures which witnesses may have lost sight of during technical failures
- it’s a sensible precaution for both the testator and witnesses to acknowledge their signatures after signing by showing their completed signatures to the other participants (this is suggested above , and it could also be used in stage one) – such acknowledgement would assist in the event of a problem with the video link at the moment of signature
- consider additional steps during any video-witnessing to mitigate the risk of undue influence such as for the testator to show or describe their physical environment and the presence of other people, if any, during the meeting
- where a will is to be signed on behalf of a testator, solicitors should be mindful that the person signing the will on behalf of the testator must be in the testator’s physical presence
- the date attributed to the will has to follow the government guidance above – it’s recommended that solicitors attempt to ensure that the witnessing is completed on the same day
- despite any recording, it’s recommended that a comprehensive attendance note of the video-witnessing is made, in accordance with usual practice when supervising execution
- treat wills executed under the Order as a holding will unless and until a will may be signed and witnessed in person rather than by video-link
Probate and estate administration
The Order distinguishes between grants of probate and letters of administration, and makes no mention of letters of administration with will annexed.
Guidance on applying the Order to each situation is provided below.
It’s recommended that solicitors take care in interpreting the effect of the Order and consider the dates and said attempts at will execution carefully and on a case-by-case basis.
Grants of probate
The Order does not apply to grants of probate before it came into force (28 September 2020).
For example, a will which was witnessed by video-link in accordance with the Order (say, after 31 January 2020 and fulfilling the meaning of presence by video-link and other formalities as usual for a will) will not be valid if an earlier will has already been granted probate before 28 September 2020.
Letters of administration
The Order does apply to grants of letters of administration.
For example, a will which was witnessed by video-link in accordance with the Order (say, after 31 January 2020 and fulfilling the meaning of presence by video-link and other formalities as usual for a will) will be valid and eligible for a grant of probate, notwithstanding that the estate was perceived to be an intestate estate and may have been distributed either in full or part.
Solicitors may wish to be cautious administering intestate estates where the deceased died on or after 31 January 2020 and ensure full enquiries are made into the existence of executed wills including those executed by video-witnessing between 31 January 2020 and the date of death.
Letters of administration with will annexed
The statutory instrument and explanatory memorandum do not explicitly mention grants of administration with wills annexed.
In the event an application is made to a court to determine whether to set aside a grant of administration with will annexed in favour of a later video-witnessed will, it would be for the court to determine whether the will should be set aside for good cause bearing in mind all the relevant circumstances.
Therefore, should a situation arise where the validity of a video-witnessed will is challenged and a grant of letters of administration with will annexed has been issued, solicitors should analyse the full range of remedies.
Resolving disputes over video-witnessing
The novelty of the measures the Order allows, and the ambiguity of some elements of the Order, could lead to dispute.
Resolving disputes will depend on individual circumstances and may include, among others, a negotiated settlement or an order from a Probate Registrar or the Court.
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This guidance has been developed by our Wills and Equity Committee.