Digitally signed Wills
It is set to come into force towards the end of September, but will apply retrospectively to wills executed from 31 January 2020.
Practitioners have welcomed this announcement although the new measures would only be advised as a last resort. During the pandemic social distancing measures meant having witnesses physically present at a will signing was an obstacle.
The legal requirement
For a will to be valid it must be made according to the rules set out in the Wills Act 1837. These include a requirement that the will maker must sign it ‘in the presence of’ at least two adult independent witnesses.
Until now, ‘presence’ has meant physical presence. The new legislation will amend the Wills Act 1837 so that, whilst the legislation is in force, witnesses’ ‘presence’ may be either physical or virtual. It will mean that witnesses may be present via video technology.
The other rules of the Wills Act 1837 continue to apply and it remains crucial that they are observed, even when video technology is being used.
Both witnesses must see the will maker signing the will at the same time, and vice-versa, though only the will maker must see each witness sign. When the will maker signs, the witnesses must be able see each other, as well as the will maker. Counter part wills are not permitted and the will must then be circulated as soon as possible. The witnesses must then make sure the will maker can observe them sign their names remotely in the same fashion.
A will only becomes formally valid once the will maker and witnesses have signed it and in line with the other Wills Act 1837 requirements.
Solicitors generally make attendance notes when witnessing wills and although a recording of a digitally signed will can be made other guidance should be followed. For example;
- Within the will the signature clause should confirm that the witnesses’ presence has been by video-link.
- The witnesses should confirm that they can see, hear (unless they have a hearing impairment), acknowledge and understand their role in witnessing the will.
- Ideally, the witnesses should be physically present with each other.
- The witnesses (where possible) should sign the will within 24 hours of witnessing the will maker’s signature
Where we advise on the will and a digitally signed wills becomes necessary, we would provide the two witnesses and make a comprehensive note of the proceedings. This is not only because of confidentiality but to ensure the signing is efficient.
We would still caution against making a will via video unless it is absolutely necessary. Once the legislation is published practitioners will be better placed to advise will makers.
If you have any questions arising from the issues discussed above, please contact us.