Witnessing a will

A will is a document by which a person (the testator) sets out how they would like their estate to be divided upon their death. For a will to be legally valid the testator must:

• be 18 or over
• make it voluntarily
• be of sound mind
• make it in writing
• sign it in the presence of two witnesses who are both over 18
• have it signed by two witnesses, in the testator's presence.

As a will is such an important document, the law as to signing the will is strictly applied and if the signing formalities are not met, this could result in the will being invalid.

The testator and the two witnesses need to be together in each other's presence when they all sign the will. This requirement presented particular challenges during the lockdown imposed during the pandemic as people were not allowed to be in each other's presence. Changes to the law were introduced to allow so called 'remote witnessing' of wills. These were intended to be temporary but have been retained for the time being. 

Remote witnessing of wills means that if a testator cannot meet their witnesses in person, they can watch each other sign their will remotely (for example, by video conferencing).

What is required for will signing is a 'clear line of sight' meaning that a witness must have a 'clear line of sight' of the will-maker signing and understands that they are witnessing and acknowledging the signing of the document. For example, if self-isolation or social distancing have prevented the signing and witnessing of a will by people in the same room.

The person making the will must have a clear line of sight of the witnesses signing the will to confirm they have witnessed the will-maker's signature (or someone signing on their behalf and at their direction). The following scenarios would lead to a properly signed will during the pandemic within the existing law, provided that the will maker and the witnesses each have a clear line of sight:

• witnessing through a window or open door of a house or a vehicle
• witnessing from a corridor or adjacent room into a room with the door open
• witnessing outdoors from a short distance, for example, in a garden.

A recent court case has upheld a will that was signed by the testator as he sat in a car and the witnesses watched him sign through the car window. This was very significant for the family because the testator was acknowledged to be a difficult man, who had made a number of wills which had the effect of bringing family members in and out of inheritance.

The wider significance of the case is that during the pandemic, there were a lot of wills signed using remote witnessing or using 'ingenious arrangements', as the court described the witnessing through the car window. As we get further from the events of the pandemic, it is likely that there will be more challenges to wills that were witnessed in anything other than standard circumstances.

If anyone made a will during this time, they may be well advised to have the will reviewed by a suitably qualified lawyer to ensure that all is in order and the will has been clearly signed and witnessed properly. It would be prudent to do a new will if there is any doubt. This may seem like overkill but, of course, in the case of an uncertain will, the person who would know what they wanted to achieve will not be there to answer questions.

To discuss this or any other wills and probate matter, contact us.