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New Forest

17/08/2020

Remotely witnessed wills to be officially valid in England and Wales

The change is due to be introduced in September, but will be backdated to 31 January 2020 to allow remotely witnessed wills during lockdown to be valid.

Failure to meet the attestation requirements of a will, i.e. that it is signed by the testator in the presence of two witnesses, and by them in his/her presence, is one of the key reasons why wills are declared invalid. As such, it is of paramount importance to ensure these formalities are adhered too if you wish your estate to pass in accordance with your wishes.

Where Government guidelines in the past few months have prevented meeting others outside your household, it has not been possible for individuals to ensure their wills are signed in accordance with the formal attestation guidelines. Having a valid will has moved to the top of the ‘to do’ list for many individuals concerned about the implications of the coronavirus pandemic for them and their families. Many firms have therefore attempted to witness the signing through windows or via video link, in the hope that, whilst in contrast to the strict rules, this would be sufficient if the testator should die during the lockdown period. The relaxation of the rules to allow remote witnessing is therefore a relief to both firms and testators alike that their time has not been wasted.

Whilst remote signing will be deemed valid under the statutory instrument, it should be noted that this is not without conditions. The witness must still be able to see and hear what it going on and must be confident that the testator is not signing under duress. They must also still witness the testator’s signature in real time, so a pre-recording will not be allowed. Where possible the witnessing should be recorded and the witness statement should make clear that the testator’s signature was witnessed remotely.

It is also disappointing to see that the relaxation of the rules regarding remote witnessing, instead of a move to become more digital, is merely a temporary measure. The intention is that the new rules will deem remote witnessing to be valid until 31 January 2022 (which can be shortened or lengthened at the Government’s discretion), after which witnesses must again be physically present for the will to be valid.

For further information on remotely witnessed wills, please contact Gemma Hedges on 023 8046 1259.

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