There are a number of criteria that must be met in order for a Will to be valid. These also include the relationship of the witness to the Testator (the person making the Will) and also their relationship to the beneficiaries in the Will.
The Law Society are currently exploring whether a gift in a Will to the cohabitee of a witness should be void in the same way as a gift to the spouse or civil partner of a witness would be.
For the avoidance of doubt best practice is for the witnesses to be completely independent from the Testator and any beneficiaries named in the Will.
During the administration of the estate of the deceased, the relationship of between the Testator, the witnesses and also the beneficiaries in the Will should be examined carefully.
At this time nothing had been confirmed but changes may be made to reflect today’s modern living arrangements where couples do not marry. It seems illogical to treat cohabitees of witnesses differently to the spouses and civil partners of witnesses.
There is no comparison between today’s modern way of life to that of the 19th century when the Wills Act of 1837 came into force.
The Wills Act Section 9 states that no Will shall be valid unless;
● It is in writing and signed by the Testator or by some other person in his presence and by his direction.
● It appears that the Testator intended by his signature to give effect to his Will.
● The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time.
● Each witness either attests or signs the Will, or acknowledges by his signature, in the presence of the Testator (but not necessarily in the presence of any other witness) but no form of attestation is necessary.
‘No form of attestation is necessary’ means to avoid a set wording of an attestation (signing) clause to reduce barriers to the creation of a valid Will and make it easier for an individual to make a Will.
It should be noted that in relation to points 3 and 4 above and due to Covid 19 restrictions since 31st January 2020 and until 31st January 2022 ‘presence’ is taken to include presence by video conference or other video transmission.
However, should a Will be signed and witnessed remotely by video conference this adds additional layers of criteria to be satisfied for the Will to be deemed to be valid.
In order for a Will that has been remotely witnessed to be valid, among other things it needs to be returned to the witnesses no later than 24 hours from the time of the Testator has signed the Will. There are potential dangers of remotely witnessing a Will such as;
● As described above the Wills Act has been in force for almost 200 years and is reasonably well understood so any changes to this will increase the potential for disputes over the incorrect procedure being used.
● There is a greater risk of coercion or undue influence as by the very nature of a video call it is impossible to see others that may be off camera but in the room.
● It is more difficult to judge testamentary capacity remotely.
● There could also be technical difficulties in that the transmission may freeze during the act of signing and as such the signature would not have been witnessed.
It is for these reasons that as a firm we have made the decision not to undertake the remote video witnessing of Wills.
Kevin Martin
