What are the changes and what do they mean for your will?

The government has recently introduced changes which help address issues presented by the Covid-19 pandemic when it comes to making wills using video calling.
Lawyer ,Mike Muston looks at the recent changes and what they could mean for you.

The major issue that many people have faced and may still face is that, with the need for a will to be witnessed by two people, how is this possible for those that need to self-isolate? With the public now having a far greater understanding of video calling, through popular platforms such as Zoom, questions arose as to whether this technology could be used as part of the process.

To address this uncertainty, the government has confirmed that video calling can now be used as part of the process of making wills.

The use of video calling is, however, covered by strict guidelines, so it is important that you understand your position, to avoid concerns about whether your will is valid.

Is a “video will” legal in the UK?

A person cannot make a valid will through simply recording themselves speaking in a video on their mobile phone.

The changes introduced do not remove the standard requirements for making wills, namely that the will must be in writing, signed by the person making it and that signature should be witnessed by two people, who then go on to sign the will themselves.

What the changes mean, is that subject to a number of fixed requirements, a will can be witnessed via video.

Can wills be witnessed by video link in the UK?

Subject to following the strict guidelines, it has been confirmed that yes, wills can now be witnessed by video link.

However, the requirements for the will to be made in writing and signed by both the person making the will and the witnesses remain. The video link must also be live, as witnessing a video of someone signing the will is not sufficient.

The process of witnessing by video link is not, therefore, entirely straightforward. As it is likely to be necessary (to avoid delay) to physically transport the will between the person making it and the witnesses. There would also need to be more than one video call, in order to enable all parties to see each other signing the document, in accordance with the standard requirements for will making.

In addition, the changes apply for wills made since 31 January 2020 (the date of the first registered Covid-19 case in England and Wales), but not where a Grant of Probate has been issued already, or is in the process of being issued by the Probate Registry.

The changes will apply to wills made up to two years from when the changes came into force (so until 31 January 2022). However, the government has the power to shorten or lengthen this time period.

How do you ‘witness’ a video will?

It does not matter what video calling facility is used. What is important is that the witnesses are involved in a ‘live’ video (not a recording), and they can clearly see and hear the person making the will. It is important that they can see that what is being signed is the person’s will and that they see the act of signing – not just the head and shoulders of the person recording their signature.

As mentioned, the same document must then be signed by the witnesses. It is not permissible to sign counterparts and join them together to form the will. This means the document must be physically transported to the witnesses for signature, who will need to have another video call with the person making the will, to show them signing it.

Can you witness a video will without a solicitor?

There is no requirement for witnessing by video call to involve a solicitor. However, the process is more complicated than for a standard will, so it is likely to be sensible to have legal guidance throughout the process.

In any event, it is, in all cases, helpful to have input from a solicitor when drafting a will, due to the many issues that can arise in preparing such a document, as well as the implications around the will being contested.

Can you make a video will on your deathbed?

Yes, it is possible to make a will on your deathbed using video calling.

However, if the situation is urgent, issues could arise if the person making the will is signing the document and then needing to send this on to the witnesses for signature. If this process is likely to be slow, a risk could arise that the will is not signed by all parties before the person making the will dies. Even if the witnessing has taken place by video call, the will is not valid until both the person making the will and the witnesses have signed the document.

There may be alternative options involving the use of a person signing on behalf of the person making the will. However, this is a technical procedure and it is strongly recommended that legal advice is sought before any such steps are taken.

Is a will made by video recorded?

Whilst not essential, it is recommended that, if possible, the process is recorded. This is simply from an evidential perspective, in the event that anyone challenges whether the correct process was followed.

Recording the will making process can actually assist in all situations (whether or not a video call is involved) if there are fears that concerns may later be raised that the person making the will was lacking in mental capacity or was being subjected to undue influence.

Can I update a current will using a video will?

It is possible both to make a new will and a “codicil” to an existing will using video calling. A codicil is a document which makes changes to a previous will. The requirements for making a codicil are the same as those for a will, so this document would also need to be in writing, signed by the person making it and then signed by two witnesses.

It is recommended that you seek legal advice before seeking to make a will or codicil which involves a video call, as the standard process is still the recommended route and may be more suitable for your situation.

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