New Temporary Rules For Witnessing Wills Announced
The Ministry of Justice (MoJ) has announced that the government is to legalise the remote witnessing of wills for a period of two years, backdating the change to 31 January 2020 to accommodate those who may have already done it during the pandemic.
However the MoJ has decided against the use of electronic signatures due to the risks of undue influence or fraud.
The law will come into effect in September and radically extending the requirement (which dates back to the Wills Act 1837 Wills) that a will is made “in the presence of” at least two witnesses. This has always been understood to have been a ‘physical presence’ but will now include those witnessing remotely, as long as the quality of the sound and video is sufficient to see and hear what is happening.
All the parties will still need to have a clear line of sight as with conventional wills and cannot witness pre-recorded videos. Counterpart wills will not be allowed using this method.
The backdating will not apply where a grant of probate has already been issued or the application is in the process of being administered.
The MoJ intends to keep the legislation in place until 31 January 2022, but have said this may be curtailed or extended if necessary. However, it stressed that using video technology to witness wills should be considered an exceptional provision rather than the norm.
It also suggests that the video-signing and witnessing process should be recorded and the recording retained to assist a court should the will be challenged after death by a disappointed beneficiary.
The testator is to hold the front page of the document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well. The testator should ensure the witnesses can see them actually signing the will.
If the testator is unknown to the witnesses they must seek confirmation of identity.
The witnesses are to ensure that they are able to see, hear and understand their role, and the document should be taken for them to sign, ideally within 24 hours. The testator should be watching online in the same way – if the witnesses are not with each other, they should watch each other sign online.
The Lord Chancellor, Robert Buckland, said: “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.”
Law Society president Simon Davis welcomed the change, adding: “The government needs to ensure the legislation is properly drafted to minimise unintended consequences and ensure validity.
“Both probate professionals and the public will need greater clarity on when remote witnessing is appropriate and what to do in exceptional circumstances – such as if the testator dies while the will is being sent to a witness’ address for them to sign…
Karl Dembicki, private client partner at Russells commented, “It is important to remember that this is an exceptional provision and should not be employed for mere convenience. The MoJ should have included safeguards against the risks of duress, undue influence and fraud. With an increasing number of wills challenged each year it is imperative that they are witnessed correctly – with correct social distancing rules in place that should not be too burdensome”.