Ahead of legislation to be introduced temporarily to amend the Wills Act 1837 to provide that the requirement for the ‘presence’ of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence, the MOJ has published guidance on the current law and distanced witnessing through a ‘clear line of sight.’ It is available here; the guidance also covers what the MOJ considers should happen upon passage of the amending legislation to put beyond doubt the acceptability of video-concerning (a major health warning: the guidance is written in advance of the legislation having been passed, so will have to be revisited if any changes are made to the legislation as it goes through Parliament).
An interesting feature of the guidance is that notes that:
If possible, the whole video-signing and witnessing process should be recorded and the recording retained. This may assist a court in the event of a will being challenged – both in terms of whether the will was made in a legally valid way, but also to try and detect any indications of undue influence, fraud or lack of capacity.
Putting aside the (substantial) potential complexities of retaining recordings, the recognition that capturing the signing and witnessing process might enable detection of the wider and more subtle factors at play (including, in particular the interaction between witness and testator) is an interesting one. Translated to other settings – for instance the grant of a power of attorney or (even) the assessment of capacity – the recognition that the written word alone may not capture the true position is an important one.
The document also makes clear that the Government is not intending either to allow for electronic signatures or so-called counterpart wills.