There has been much discussion in the legal world in the last few weeks, following an announcement that the Government are proposing to allow virtual witnessing of Wills.  This will be retrospective and cover Wills made from January 2020 onwards.

Over the lockdown period, we have used Zoom and other online platforms to keep in touch with clients, do quizzes with friends and loved ones.  Now, it will be possible to sign the Will in the online presence of two witnesses.  This sounds simple enough but the logistics will present several challenges to lawyers.  Once signed, the Will then has to be sent to the witnesses for them to sign.  The Will only becomes valid on being signed by the witnesses.  If the testator dies before the witnesses sign, or the will is lost in the postal system, there is no valid Will in place.

Since 1837 the rules surrounding the making of a Will have not changed.  While other aspects of the legal world have gone digital, Wills have not.

Section 9 of the Wills Act 1837 is the key to making a valid Will and states that:

No will shall be valid unless—

• (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
• (b) it appears that the testator intended by his signature to give effect to the will; and
• (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• (d) each witness either—
  • (i) attests and signs the will; or
  • (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.]

Many lawyers argue there are potential problems in doing remote witnessing because we simply cannot assess our client’s capacity and mindset in the way we do when we see them face to face. There are also concerns that people may be hidden from view on a webcam, who may be pressuring their relative or friend into making a Will that benefits them.

It remains to be seen in the long run whether online witnessing will prove to be a success or more problematic than simply finding new ways to sign your Will.  Our staff at St Helens Law have been witnessing our Wills throughout the last few months, with no problems.