As the country is still trying to find an effective and cohesive policy to deal with the COVID-19 pandemic, so many aspects of our lives have been affected, and not all of them evident. As it looks as though the expected resurgence of a new variant of the virus is upon us, more and more of the things we took for granted will disappear from our lives, perhaps temporarily, but many will be permanent.
One area that has had to adapt to the changing environment is the law. Here we are not talking about law and order and policing the streets. We mean the law concerning acts of parliament that govern what is legally acceptable for us to do. In certain situations, our actions require legal validation, yet with the pandemic, many of those day-to-day actions are no longer ‘advisable’ to protect your health.
Sadly, one legal practice has seen a massive surge on the back of over 100,000 deaths from the coronavirus, and that is will writing. The following questions and answers should address most of the queries you may have about signing your will during the pandemic.
What is a virtual will signing?
A virtual will signing occurs where the witnesses and the person signing the will are not in the same room, or even building, but who can still see exactly what is going on where the person signing the will is concerned.
The term ‘virtual’ is used to reflect that witnessing the will’s signing is done through cyberspace. All persons involved are connected via the internet and with internet cameras, which act as the ‘eyes’ for all persons involved.
What process is involved in a virtual will signing?
The virtual signing of a will involves three people. The person making the will and signing it the testator), and the two witnesses to the testator’s signature. In a virtual signing, the two witnesses will not be present but will see the testator signing the will clearly. Also, the witnesses must see each other, though again this can be done remotely through what is called ‘videoconferencing’.
The testator must ensure that both witnesses can see them sign the will. It is also imperative that both witnesses see that the document being signed is the will they are witnessing the signature. This can be done by the person signing the will holding the document up to the camera used for the videoconference so that both witnesses can see what the document (the will) is.
After that, the will needs to be taken to each of the two witnesses for their signature. Once again, both the other witness and the testator must see the witness signing the will clearly. This process is repeated for the second witness, and they will then return to the testator.
Can I still go to see my solicitor to amend or create my will?
Yes, you can. The amendment to the Wills Act 1837 applies to all wills made from the January 1st 2020, but it is not a replacement for visiting your solicitor if you want to either make or amend a will. It is intended as an alternative means to ensure your will is legally binding but without the need to visit your solicitor.
The idea behind ‘virtual will signing’ is to help protect those who have a high risk of serious medical complications if they caught the virus.
Thinking about it, making a will, or amending a will, is something most of us tend to get involved with later in life, even though you are never too young to make a will. Ironically, it is the elderly and infirm who have been the hardest hit by the COVID-19 virus, which is why there has been such a sudden surge in demand for will writing services.
Can I make my will myself?
Yes, you can certainly make your own will. If your estate (all your possessions, property, money and any investments) are relatively modest, and you do not have a long list of benefactors, it should not be too complicated. However, a right solicitor can often help you with advice not just with preparing your will, but with ‘estate planning’.
Estate planning is identifying the most tax-efficient way to leave your estate to your relatives and friends. As an example, did you know that if you gift a large sum of money to a relative (beyond the tax-free gift threshold of £3,000) and after seven years, it is no longer liable for inheritance tax?
However, making a will yourself does not alter the fact that your signature still has to be witnessed by two individuals, which can now be done remotely.
What is the difference between ‘distanced witnessing’ and video-witnessing?
Distanced witnessing sounds almost like a contradiction in terms. It is a term that is new to will signing and is a direct result of coronavirus recommendations concerning social distancing.
Distanced witnessing is used to describe the witnessing of the signing of a will by someone who has a clear line of sight of the document (the will) you are signing, but they are not in the same room as you are, or are at the other end of the room rather than adjacent to you, which would be the norm.
Distance witnessing can involve looking through the doorway into the room where you are, or it can even be someone who is stood outside the window of the room where you are.
The only stipulation is that the witness has a clear and unobstructed view of what you are signing.
Do I have to have at least one witness to my signature present?
No, you do not need to have any of the witnesses present. The concept behind remote witnessing is respecting the requirements to avoid social contact with a vulnerable person, which applies to both witnesses.
Do both virtual witnesses to my signature have to be in the same room even though they would not be with me?
No, they do not. While both witnesses not only have to be able to witness the person signing the will, they also have to be able to witness each other signing the will as a witness. However, they do not have to be in the same room at the time and can independently act as a witness.
How can someone witness my signature if they cannot see what I am doing?
This is very important to note. Although virtual witnesses may not be in the same room as the person signing the will, they must see the will being signed and see that the person signing the will is the testator. This is referred to as ‘clear line of sight’. When it comes to witnesses signing the will, once again these requirements must be fully met.
Does the new amendment to the law mean that I can amend my will, virtually, whenever I want?
Providing the will was made after January 31st, 2020, the law allows you to amend that will, virtually, for as long as the amendment to the law is in force. This is a temporary measure to reflect the importance of social distancing during the Coronavirus pandemic and the need to avoid social interaction where vulnerable people are concerned. The amendment is only effective until January 31st, 2022.
Can I amend a will, virtually, that I made before 2020?
No, you cannot. The amendment to the current legislation applies only to wills created after January 31st, 2020.
Can the witnesses or I digitally sign the will?
No, you, nor anybody else, is allowed to sign the will digitally. All electronic signatures are forbidden. According to the UK Government website:
“The Government has decided not to allow electronic signatures as part of this temporary legislation due to the risks of undue influence or fraud against the person making the will. The Law Commission identified these risks in its 2017 consultation paper on wills. The Law Commission is undertaking a law reform project which will include consideration of the possibility of allowing electronic wills in the future.”
Action Plan
Here at Qredible.co.uk, we are very aware of the importance of wills and, also, the importance of a will being correctly signed and witnessed. Our wills solicitors are more than happy to go through everything to ensure you have total peace of mind where your will is concerned.
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