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Remote Wills: can a video recording be used as a Will?

Remote Wills: can a video recording be used as a Will?

A video recording, on its own, is not legally enforceable as a Will.  To be valid, a Will must be in writing and signed in the presence of two witnesses. However, during the Covid 19 pandemic, this proved  to be a challenge for  many people wanting to make a Will because they were self-isolating or shielding.

Help came in the form of an amendment to The Wills Act 1837.  On the 25 July 2020 the Ministry of Justice temporarily changed the law to state that whilst this legislation is in force, the ‘presence’ of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence.  This week it was announced that video-witnessed Wills are to continue to be allowed for at least another two years.

The type of video conferencing program or device used is not important.  What is important is that  the person making the will and their two witnesses each have a clear line of sight* of the writing of the signature. The will-maker could state ‘I first name, surname, wish to make a will of my own free will and sign it here before these witnesses, who are witnessing me doing this remotely’.  The witnesses must see the will being signed in real-time.

Other usual ‘rules’ apply; that is to say that the person making the Will must be acting with (mental) capacity and in the absence of undue influence.  If possible, the video-signing and witnessing process should be recorded – just in case the Will is later challenged.

As an added precaution, the Testator (the person making the Will) could ask a Notary Public to witness the signing of the Will. The notary, acting as an expert witness, is experienced in checking identity, capacity, and a lack of coercion.

For more information see Guidance on making wills using video-conferencing

*Physically witnessing a Will could be done via remote ‘clear line of sight’! The signing could be witnessed  through a window or open door of a house or a vehicle, witnessing from a corridor or adjacent room into a room with the door open or witnessing outdoors from a short distance, for example in a garden.