Eastbourne Newsletter – November 2020

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Humphrey & Co

GUIDANCE ON MAKING WILLS USING VIDEO CONFERENCING

The Government is introducing legislation on 28 September 2020, which will have retrospective effect from 31 January 2020, to allow people to use video-conferencing technology for the witnessing of wills being made.

The legislation recognises that:

  • An increasing number of people have sought to make wills during the Covid-19 pandemic, but for people shielding or self-isolating it is extremely challenging to follow the normal legalities of making a will – namely it being witnessed by two people.
  • In response to this the law (the Wills Act 1837) will be amended to state that whilst this legislation is in force, the ‘presence’ of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence.

The legislation will apply to wills made since 31 January 2020, the date of the first registered Covid-19 case in England and Wales, except:

  • cases where a Grant of Probate has already been issued in respect of the deceased person
  • the application is already in the process of being administered

The legislation will apply to wills made up to two years from when the legislation comes into force (so until 31 January 2022), however this can be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures.

The Ministry of Justice’s advice is that remote witnessing should be used only in an emergency when conventional witnessing is impossible, and extreme caution is required when using it.

The type of video-conferencing or device used is not important, as long as the person making the will and their two witnesses each have a clear line of sight of the writing of the signature.

Witnessing pre-recorded videos will not be permissible – the witnesses must see the will being signed in real-time. The person making the will must be acting with capacity and in the absence of undue influence. If possible, the whole video-signing and witnessing process should be recorded and the recording retained. This may assist a court in the event of a will being challenged – both in terms of whether the will was made in a legally valid way, but also to try and detect any indications of undue influence, fraud or lack of capacity.

Our Trust and Estate Support Services team can provide support and guidance both to private individuals and professional people in relation to Wills, LPAs, Probate and Estate Administration. Our trust and estate partner, Sue Pocklington and the TESS team are all members of the Society of Trust and Estate Practitioners (STEP).

Further guidance can be found here: https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing?utm_source=84ab25f7-bc02-46f9-a7d0-400f44b9de2f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate