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How to witness a will in lockdown

One of the products of the Coronavirus lockdown is in relation to the witnessing of wills.

The problem

It has always been the case that the person making the will (the testator) has to have two witnesses present at the time that the will is signed. The sequence is that the testator assembles two people who will act as his witnesses. They have to be adult persons and not a relative. Witnesses have to watch the testator signing the will. Each witness then needs to sign the will in the presence of the other witness and the testator.

It is going to be possible from the 1st September for a will to be witnessed electronically. Albeit that the legislation only comes into force on the 1st September, the regulations however are backdated to the 31st January 2020. The regulations will only continue for a period of two years, that is until the 31st January 2022. If there have been no further changes then one has to revert to the position of witnesses being actually present.

The solution

The starting point is to set up a video conference with the two witnesses. The testator signs the will whilst the two witnesses are there. The will is then posted to one of the witnesses. That witness signs it during a further video conference. The document is then sent to a second witness. There then has to be another video conference, again involving all three people when the second witness can sign. Since this process can take a few days it is possible that the testator can become incapacitated or might die before the witnesses process has been completed. In that event, the will would not be valid.

For advice and help with drafting or witnessing a will contact richard.manning@cohencramer.co.uk 


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