Virtual Witnesses and Changes to Probate

Since lockdown, the social distancing rules have thrown up many issues for lawyers. Wills and probate lawyers warned the government at the start of the crisis that clients were finding it more difficult to make Wills. Worse still, this was happening at the very time when Wills were most needed. Many solicitors were able to find ways to still get the work done while maintaining social distancing, but this was not always possible. One of the most difficult problems was satisfying the requirement that a Will be properly witnessed.

In a welcome move, the government has made a temporary change to the witnessing rules allowing Wills to be witnessed by video link. The Ministry of Justice announcement represents a significant change to the 183-year-old rules which dictate how Wills (and codicils) are made in England and Wales.

Under the current rules, to be valid, a Will must be signed in the presence of two independent adult witnesses. This means physical presence. Under the new rules, virtual presence via video link has been permitted provided strict guidelines are followed.

The Government has planned to introduce the necessary legislation in September, but it has confirmed that the rules will be applied retrospectively. Wills made from 31 January 2020 are covered, as are any Wills made up to 31 January 2022. Detailed guidance on how to follow the new rules has also been published.

Under current rules, the person making a Will (the testator) and the two witnesses have to be in each other’s physical presence and the witnesses have to have a “clear line of sight”. Wills witnessed through a window would be allowed as would witnessing at a distance provided the witnesses were able to see the testator sign. The testator also has to sign in the presence of both witnesses and each witness has to sign (or acknowledge their signature) in the presence of the testator. These fundamental requirements still apply but have been adjusted to allow the use of a video link rather than requiring physical presence. If a Will is witnessed virtually, then the following guidance has to be followed:

•           A bespoke attestation clause should be included in the Will, stating that it is to be witnessed virtually;

•           A live video link (not pre-recorded video) must be used;

•           The camera angle must allow the witnesses to see the testator and identify him or her, to see that the document being signed is a Will, and to see the moment of signing;

•           Once the testator has signed, the original Will must be taken or sent to the witnesses to sign (counterparts are not permitted);

•           When the witnesses sign on video link, the testator must be able to see them doing so (again, merely seeing their head and shoulders on screen is not enough).

It is also recommended that each video call be recorded and that the Will should be signed by all parties within 24 hours. The Will is not valid until the testator and two witnesses have physically signed it. The guidance makes clear that signing virtually should be a last, not first, resort. In some ways this makes sense, as when a Will is signed in everyone’s physical presence it is valid immediately. In-person signing has less risk of delay, but a virtually witnessed Will has to be physically sent from testator to witnesses so the signing process has to be repeated three times.

These changes are a welcome but temporary measure, and in some ways they may not go far enough in reforming an area of practice where change is long overdue.

Online probate applications service

A further issue which is currently affecting probate work is the recent expansion of the courts’ online probate service. As you may recall from studying on the Diploma course, probate is a process that gives the legal right to deal with a deceased person’s estate (i.e. their property, money and possessions).

Until recently, executors would need to swear an oath in person at a probate registry or Solicitor’s office. Now, swearing an oath and payment of the fee can be done online. It is still necessary for documents such as the Will and death certificate to be physically posted. The system was initially only available to members of the public, but since March 2020 the court service has been encouraging applications to be made through the online portal where possible. New standard application forms for professional practitioners were created, and the three grant of representation forms have been redesigned. The new forms are:

i)          the PA1A – application for grant of letters of administration;

ii)          the PA1P – application for a grant of probate; and

iii)         the PA8A – application for a caveat.

The rush to move the system online at the start of this year is self-explanatory, but the court service acknowledges that the system will need to be altered as lessons are learnt. The early feedback from practitioners’ suggestions indicates that the number of changes will be significant if the new online system is to be fully accepted by the legal profession.