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Witnessing a will during the Pandemic

It is rather amazing to realise that the principal law relating to Wills is contained in the Wills Act of 1837. That was the year Queen Victoria came to the throne!

It is not surprising that some adjustments have been required as a result of the pandemic.

The 1837 Act states that a will must be made in the presence of the will maker ( the testator) and at least two witnesses. But legislators have recognised the difficulty of complying with this during the pandemic, particularly by those who are shielding or self- isolating. Steps have been taken to recognise that witnessing through video technology such as Zoom is acceptable. Amendments to the law will be backdated to 31st January 2021.

Wills still need to be witnessed by two witnesses, who are not beneficiaries. Electronic signatures are not permitted. When people can make wills in the conventional way they should continue to do so.

Broadly speaking the key to witnessing a will remotely is that the witnesses must have a clear line of sight of the writing of the signature by the person making the will as he or she signs it. The witnesses must see the will being signed in real time.

The will document will then have to be taken to the witnesses, ideally within 24 hours, for the witnesses to sign. Again, the key here is for the will-maker to have a clear line of sight of the witnesses writing their names, not just of their head and shoulders.

It is easy to imagine different scenarios affecting the will-maker and witnesses. Sometimes one of the witnesses maybe able to be with the will-maker; sometimes all three individuals maybe in separate locations but linked with a conferencing link. The rules concerning a wide range of scenarios are set out here.

The rules are precise. They should be read carefully and advice should be obtained before undertaking the remote witnessing of a will.

The pandemic has accelerated the use of technology in so many areas of life. It will be interesting to see if legislators stick to their current intentions of the changes remaining in place until 31st January 2022, “or as long as deemed necessary” or whether indeed the changes become permanent. It seems odd to contemplate going back to the law of 1837!

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