Government to Legalise Remote Witnessing of Wills During Pandemic
As a consequence of coronavirus and to make it easier for people to record their final wishes during the pandemic, on July 25th 2020, the Government announced the following temporary changes:
it plans to legalise the remote witnessing of wills (England and Wales);
reforms will be backdated to 31 January 2020 and will remain in place as long as necessary;
new laws to reassure public that wills witnessed via video link are legally recognised
These changes will be made via new legislation in September 2020
S.9.Wills Act 1837
The current law, in use for nearly 200 years, states a Will shall not be valid unless:
it is in writing and signed by a testator, or by some person in their presence and by their direction; and
it appears that the testator intended by their signature to give effect to the Will; and
the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time; and
each witness either -
attests and signs the Will; or
acknowledges their signature in the presence of the testator (but not necessarily in the presence of any other witnesses)
Best and safe practice is that witnesses must not only be present at the same time, but also that they are fully aware of what the testator is doing and that they can clearly see the signature when it is made or acknowledged.
Whilst isolating, shielding or even physical-distancing, many might struggle with such strict principles.
Video Conferencing
Physical-distancing has meant that we have had to move our social lives online. There has been an increase in the numbers using video conferencing to connect with friends and family. Hence, the government’s move to amend the law. Ministers have acted to reassure the public that wills witnessed remotely will be deemed legal, as long as the quality of the sound and video is sufficient to see and hear what is happening. Crucially, the move maintains the vital safeguard of requiring two witnesses – protecting people against undue influence and fraud.
Justice Secretary & Lord Chancellor, Rt Hon Robert Buckland QC MP, said:
We are pleased that more people are taking the incredibly important step to plan for the future by making a will.
We know that the pandemic has made this process more difficult, which is why we are changing law to ensure that wills witnessed via video technology are legally recognised.
Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable.
The new law will amend the Wills Act 1837 to stipulate that where wills must be signed in the ‘presence’ of at least two witnesses, their presence can be either physical or virtual. Wills still need to be signed by two witnesses who are not its beneficiaries and electronic signatures will not be permitted.
The measures will be backdated to 31 January 2020 – the date of the first confirmed coronavirus case in the UK – meaning any will witnessed by video technology from that date onwards will be legally accepted. The change will remain in place until 31 January 2022, or as long as deemed necessary, after which wills must return to being made with witnesses who are physically present.
The use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so. Wills witnessed through windows are already considered legitimate in case law as long as they have clear sight of the person signing it.
Emily Deane, Technical Counsel at the Society of Trust and Estate Practitioners (STEP) commented:
We are delighted that the Government has responded to the industry’s calls to allow will witnessing over video conference. By removing the need for any physical witnesses, wills can continue to be drawn up efficiently, effectively and safely.
STEP also welcomes the move to apply this retrospectively, which will provide reassurance to anyone who has had no choice but to execute a will in this manner prior to this legislation being enacted. We hope the policy will continue to evolve and enable more people to execute a will at this difficult time.
In the longer term the Government will be considering wider reforms to the law on making wills and responding to a forthcoming Law Commission report.