New rules for witnessing Wills

Lockdown had an immediate and profound effect on so many aspects of our lives. Things we took for granted one day, suddenly involved much head-scratching, thought and planning the next.

Understandably, the early days of the pandemic saw a tsunami of people wishing to make or update their Wills, and a few days following lockdown we published an article on making Wills and Lasting Powers of Attorney remotely – the result of considerable head-scratching on our part!

Witnessing Wills

This was necessary because one of the most significant procedural problems created by lockdown and social distancing was (and is) how to comply with the stark witnessing requirements created by the Wills Act 1837:

“No will shall be valid unless…the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time”, each of whom then signs the Will.

This is a mechanism to protect against undue influence and fraud.

Video Conferencing

Now, the government has announced that in September they will introduce temporary legislation, backdated to 31 January 2020, which will allow people to witness a Will remotely via video conference software such as Skype, Zoom or Facetime. The significance of 31 January 2020 is that was the date of the first confirmed Covid-19 case in the UK. The new rules mean that any Will witnessed by video technology from that date onwards will be legally valid, providing the quality of the sound and video is sufficient to see and hear what was happening.

Once a Will has been signed by the testator it can be posted to each witness, who will then sign it themselves during a live web-conference.

The Ministry of Justice say that the use of video technology should remain a last resort and the new rules will remain in place only until 31 January 2022, or as long as they are deemed necessary. Thereafter, Wills will again require witnesses who are physically present.

Private Client specialist, Jenny Greenland, said:

“The pandemic has made the process for witnessing Wills more challenging, and as a profession we have had to adapt quickly to the new environment. While these new rules are recognition by the government of the problem we face, it’s important to understand that there still remain strict procedures to follow. If they are not complied with, your Will may be invalid.

“In addition, these rules clearly increase the risk of fraud, undue influence and other problems. Somebody off-camera may be exerting pressure on the testator; the Will might be lost in the post or intercepted by an interested party; or the testator might die before the witnessing process is complete. I think it’s inevitable that we are going to see more challenges to Wills witnessed under these temporary rules.”

Law Commission

Perhaps with these issues in mind, the Law Commission – a statutory independent body which advises the government on law reform – has been asked to review the law in this area and to devise a more permanent (and presumably workable) solution.