The Government has brought temporary legislation into effect from 28 September 2020 for the making of Wills during the Covid-19 Pandemic. It applies to both Wills and Codicils made on or after 31 January 2020 and on or before 31 January 2022. This period is subject to change.
What does this mean?
Under the temporary legislation, a person who is making a Will (the testator) can have their signature witnessed by two witnesses virtually, ie by video-link, as opposed to being in the physical presence of their witnesses, which is what was required before the temporary legislation was brought into effect.
If a Will is witnessed virtually, the usual requirements under Section 9 of the Wills Act 1837 will still apply and the testator will need to have capacity to make a Will. This means that they have a full understanding of what they are doing and that they are not forced into making a Will. Otherwise, the Will would be invalid.
The temporary legislation requires additional steps to be taken when the Will is being witnessed in this way. In summary, the testator can be alone or in the physical presence of one of the witnesses; the testator will have to identify themselves to the witnesses and show them the front page of the Will and the attestation clause (the signature clause) by holding them up to the camera. Furthermore, the witnesses must actually see the testator signing the Will. The Will can also be signed on the testator’s behalf by someone else provided they have asked them to do so. The Will can then be posted to each witness to sign afterwards.
The temporary legislation does not come without risks and the Government advises that Wills are signed and witnessed in the usual way if possible. If it is necessary for a Will to be signed and witnessed by video-link, it is a good idea to make a recording of the meeting and store it provided all parties consent.
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