The COVID-19 pandemic has not only forced people around the world to change their lifestyles to curb the spread of the virus, it has also reminded people of the fragility of life as more and more patients lose the war with the infection. This has compelled people to finally start writing their wills, something that has been neglected by far too many.
However, a problem arose during the lockdown – how could a will be witnessed? Under s.5 of the Wills Act 1959, when you sign your will, two witnesses are required to be present to confirm that you are of sound mind and that you are aware that you are signing a will. Although people were able to seek the help of professional will writers to write their will by communicating through social media and emails, their wills could not be witnessed.
The question was whether the testator could sign the will at home, with the witnesses fulfilling their duty through a video call. Unfortunately, the Wills Act 1959 also requires the witnesses to sign the will, and therefore the will cannot be witnessed through a video call. Even if the testator passes away before his will had been witnessed, the video recording cannot be used as evidence of someone witnessing the will as the witnesses would not have signed the will.
Countries such as the United Kingdom have allowed video technology to be used to witness wills being signed during the lockdown, but they have also warned that it should only be used as a last resort. The parties would need to sign the same document together via video call, and the documents would need to be exchanged and the process repeated to ensure that all parties can sign the document physically. In practice, it does not amount to an easier method of writing your will, as thorough planning would be needed before the will can be completely executed.
Video wills have yet to gain recognition in Malaysia due to the risks involved; too many things could go wrong during the process, and the danger of misuse supersedes the safeguards. It would be best to consult a professional and experienced will writer to get all your affairs in order.
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