The Government is to legalise the remote witnessing of wills – making it easier for people to record their final wishes during the coronavirus pandemic.
Currently, the law states that a will must be made ‘in the presence of’ at least two witnesses. However while isolating or shielding some people have understandably turned to video link software as a solution – for example via platforms such as Zoom or FaceTime.
Ministers have today (25 July) acted to reassure the public that wills witnessed in such a way will be deemed legal, as long as the quality of the sound and video is sufficient to see and hear what is happening at the time.
These changes will be made via new legislation in September, which amends the law to include video-witnessing.
Crucially, the move maintains the vital safeguard of requiring two witnesses – protecting people against undue influence and fraud.
Justice Secretary and Lord Chancellor, Rt Hon Robert Buckland QC MP says: “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 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.
Simon Davis, president of the Law Society of England and Wales says: “The government’s decision to allow wills to be witnessed remotely for the next two years will help alleviate the difficulties that some members of the public have encountered when making wills during the pandemic.
“The Law Society is glad to see that guidance has been issued to minimise fraud and abuse. We look forward to working with government to ensure the reform is robust and successful.”
Emily Deane, Technical Counsel at STEP adds: “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 by those isolating.
“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.”
Legislation via a Statutory Instrument will be laid in September and made retrospective to 31 January 2020. The measures will apply to England & Wales and remain in place until January 2022 however they can be shortened or extended if deemed necessary. After this point wills would return to being made with witnesses who are physically present.
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 will still need to be signed by two witnesses who are not its beneficiaries and electronic signatures will not be permitted.
In the longer term the Government say they will be considering wider reforms to the law on making wills and responding to a forthcoming Law Commission report. The Law Commission has been consulted in the development of the Government’s response to this issue.
For official guidance on making wills using video-conferencing click here.