New legislation proposed for the witnessing of Wills
The current pandemic has certainly made people reflect on the need to prepare a Will or to update their existing Will. However, a question we have been faced with from many of our clients is “How do I get the Will signed and witnessed as I am shielding?”
The current law for witnessing of Wills
The Wills Act 1837 sets out the requirements for making and witnessing a Will.
In broad terms, to be valid, a Will needs to be:
in writing and signed by the testator or by some other person in his presence and by his direction; and
the testator intended by his signature to give effect to the Will; and
the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
each witness either –
attests and signs the Will; or
acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).
The proposed law for the witnessing of Wills
The government has announced that new legislation will be introduced in September 2020 which will amend the current provisions to allow the witnessing of Wills to be done by video. The new law will extend the requirement that a Will must be signed in the ‘presence’ of at least two witnesses so that presence can either be physical or virtual. Wills witnessed in such a way will be deemed valid provided that the sound and video is sufficient to see and hear what is happening.
It is proposed that the new measures will be backdated to 31 January 2020 and will apply in England & Wales until January 2022. There is the possibility that the changes will be shortened or extended if necessary.
Maintaining a social distance whilst witnessing of Wills
The current pandemic has made the witnessing of Wills more challenging for some clients. However, there are ways a Will can be signed whilst maintaining social distancing provided there is a clear line of sight between the person making the Will and the witnesses such as
- witnessing through a window or open door of a house or vehicle;
- witnessing from a corridor or adjacent room; or
- witnessing outdoors such as in a garden.
It is important to remember that the detail of the legislation has not been confirmed yet so whilst these changes do present those who are still not able to or comfortable with meeting their witnesses face to face with some flexibility, we will await with interest the details of the legislation and how the principles are put into practise.
Contact Ellie Taylor, Private Client, Brighton & Hove
Ellie Taylor is a solicitor in Rix & Kay’s Wills, Estate Planning & Trusts Team based in Brighton & Hove, and has expertise in advising individuals who wish to organise their affairs which may include drafting a Will, inheritance tax advice or the preparation and registration of lasting powers of attorney. Contact Ellie for more information and an informal chat about your will. E. email@example.com t. 01273 766956