Covid has presented unique challenges for people: more than ever people are thinking of making their Will but they are less able to meet up with others so that they can act as witnesses.
So what do we do?
What are the current requirements for witnessing a Will?
For your will to be a legally valid document, you should make sure it is executed and witnessed properly. Here is the criteria to keep in mind for a Will to be valid:
The Will must be in writing and signed by the testator (will-maker);
It is made apparent that the testator intended to complete the Will by signing it;
The testator signs the Will;
The witnesses must have a clear line of sight of the signing and should of the other witness also.
The witnesses must understand that they are that they are witnessing and acknowledging the signing of the Will.
Two witnesses sign the Will to acknowledge that they have witnessed him intending to give effect to the Will by signing it in their presence.
Nothing should be done to cast doubt on whether the testator fully knows what they are doing and intend to create the Will without any undue influenced by anyone.
A witness can be anyone above the age of 18 who is not blind or an inheritor in the Will (or their spouse). If an inheritor or person receiving a gift in the Will acts as a witness then their gift/share will be void.
New rules in light of Covid-19
You may have heard that electronic signatures are now allowed- this is NOT the case for Wills. In order to avoid potential fraud, electronic signatures remain invalid for Wills.
The law now allows witnesses to be ‘present’ over video link until the 31st January 2022, provided:
The testator and their two witnesses each have a clear line of sight of the writing of the signature.
The witnesses must see the will being signed live and the Will-maker must see each witness sign live.
It is recommended that the whole signing and witnessing process is recorded and the recording kept safe.
Ultimately, where it is possible to sign and witness a Will in the normal way, this is preferable.
If you are intending to have witnesses present over video call, please inform us so we can amend the signature page of the Will to reflect this.
A recommended process for witnessing a Will electronically
The Will-maker ensures that the two witnesses can see them, each other, and their actions.
The Will-maker or the witnesses should record the signing video stream and it should be made clear that the intention is to sign the Will.
The Will-maker should show the witnesses the front page of the Will and then the page they will be signing.
The witnesses should verbally confirm that they can clearly see the signature page and the place where the signature will be placed and that they understand their role in witnessing the signing of the Will.
The Will-maker should state, ‘I [full legal name] wish to make a Will of my own free will. I am now signing the Will before [full names of the two witnesses], who are remotely witnessing me sign it.’
They should sign the Will and date their signature.
Show the signature up for the witnesses to see and state “this is my signature, intended to give effect to my intention to make this Will.”
The witnesses should acknowledge that they have seen the signature and date on the Will.
The same Will document must now be signed by the two witnesses (stapling the document is recommended to keep it whole).
The Will should be delivered to each of the witnesses in turn for their signing – this should be done as soon as possible as the longer it is left the more potential for problems and, if the Will-maker dies before witnessing the witnesses signing the document, the Will will not be legally valid.
When the witnesses are signing the Will it must be done over video-link and recorded in the same way as the Will-maker did with the Will-maker watching live (and preferably with the other witness watching live as well).
The witnesses should hold up the Will to show that they are signing it and should then sign it.
The witness should then hold up the signed Will so that the signature can be clearly seen and verbally confirm that it is their signature.
For more Islamic will FAQs see our detailed guide here.