How to witness a Will during lockdown

April 4, 2021

The rules around the correct witnessing of a Will are strict. If they are not complied with, the Will is not valid and relatives and loved ones may miss out on the inheritance that was intended for them.

The requirements for signing a Will are set out in the Wills Act 1873. The person signing the Will must do so in the presence of two or more witnesses who are also present at the time or must confirm to the witnesses that the signature is theirs.

The person signing must do so themselves or someone else can sign for them, in their presence and at their direction.

The two witnesses must each attest and sign the Will or acknowledge their signature in the presence of the testator.

This generally means that at least three people will be present together, signing the same document at the same time. With restrictions and precautions because of the pandemic, the Ministry of Justice has put new temporary rules in force.

New rules for the witnessing of Wills

With an increase in the number of Wills being made during 2020, the Ministry of Justice introduced legislation in September 2020 allowing the video-witnessing of a Will. It applies to Wills made on or after 31 January 2020 and is currently expected to apply for two years, until 31 January 2022.

Wherever possible, a Will should still be witnessed in the ordinary way. If this is not an option, then video witnessing can be considered.

Video witnessing of a Will

Two witnesses must watch the testator sign and they should be able to clearly see him/her signing, but this can be done via live video link. Where possible, the process should be recorded and kept, case of any subsequent dispute.

The Will’s attestation clause will refer to the document being witnessed remotely and can also specify whether a recording has been made.

Before signing, the witnesses should be shown the Will via the camera, although they do not have to see the contents. It should be checked that they can see each other and the testator and that they will be able to see all parties signing. Ideally the two witnesses will be present together, but if this is not possible, then they can also be in separate locations.

Once the testator has signed, the Will should be sent to each witness for them to sign, preferably so that they sign within 24 hours of the testator, so ideally not relying on the postal service. Again, the testator and the other witness should see a witness signing.

Who can witness a Will?

The usual requirements for a witness to a Will apply, meaning that the following people cannot be a witness:

The spouse or civil partner of the testator
A beneficiary of the Will
The spouse or partner of a beneficiary
Someone who is under 18
Someone who is blind or partially sighted
Someone who does not have the mental capacity to understand what they are signing

If you would like to make a Will but you are concerned about how to have it witnessed, we will be happy to advise you.