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To be valid, a will must be signed in the presence of two witnesses. This can lead to difficulties when social distancing or self-isolating.
The coronavirus pandemic has, understandably, made more people think about making a will. Briefly, for a will to be valid under current law, which dates back to 1837, it must:
- be written and signed by the person making the will (the testator);
- appear that the testator intended to give effect to the will;
- be signed by the testator in the presence of at least two witnesses; and
- be signed by each witness in the presence of the testator.
It is clear that these requirements can cause difficulties at a time when social distancing, shielding and self-isolation have become part of our new normal. Legal professionals have had to think of creative ways to meet the requirements for a will to be validly executed under current circumstances, with wills viewed through windows or in gardens, each maintaining a distance of at least two meters from each. other.
The government however recognized the challenges the coronavirus pandemic poses to making a valid will and in July 2020 announced that new legislation was to be introduced to allow wills to be witnessed by videoconference. Under the new legislation, the current law still applies, but has been amended so that “presence” includes virtual presence.
The legislation applies to wills established since January 31, 2020, unless:
- a homologation concession has already been issued; Where
- an application for granting homologation is already in the process of being administered.
The legislation was initially only to apply to wills made up to 31 January 2022. However, the government announced on Tuesday 11 January 2022 that this period has been extended and the legislation will now apply to wills made up to 31 January 2024. indicates that this period can be shortened or extended, if necessary, and indicates that the government will consider whether to permanently change the law in due course.
The guidelines specify that pre-recorded videos, homologous wills and electronic signatures are not permitted. The testator and the witnesses will have to see (virtually) the will being signed in real time and they will all have to sign the same copy of the will. This means that the will will need to be sent to the witnesses separately and ideally, as directed, within 24 hours of the testator signing the will. Other videoconferences will then have to take place so that the testator can see the witnesses sign the will. The guidelines suggest that, if possible, the whole process be recorded in case the execution or validity of the will is in question.
Another point to note is that the usual attestation clause, which defines the circumstances under which the will was signed and attested, may also need to be modified to reflect that the will was attested remotely.
While the new legislation has been introduced with the intention of addressing the practical difficulties faced by people wishing to make a valid will in the current coronavirus pandemic, the advice remains that where people can make a will in the physical presence of witnesses, so they should – virtual testimony should be a last resort.
The requirements for writing a valid will are complex and, in light of the new video testimony law, it is essential to seek legal advice to ensure that your will is legally effective.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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