Government to legislate for video witnessing of wills
27 Jul 2020
The Ministry of Justice has announced that legislation will be introduced this September temporarily to relax the rules as to the formal requirements for the execution of wills, in the light of the coronavirus pandemic, and – highly unusually – that these changes will have retrospective effect, backdated to 31 January.
Justice Secretary and Lord Chancellor, Rt Hon Robert Buckland QC MP said that legislation to amend the Wills Act 1837 would be put before Parliament in September. The details of the legislation have yet to be published. At present, the only hint is that ‘presence’ will be made ‘either physical or virtual’, “as long as the quality of the sound and video is sufficient to see and hear what is happening at the time”.
It is the very people who most need to make a will – the elderly, the unwell and those who have been diagnosed with coronavirus – who are finding it most difficult to comply with the rule that there are two witnesses present when they sign the will, given that they may need to be shielding and self-isolating. Practitioners were calling for such changes in March 2020 when the same Robert Buckland MP, in a statement on 3rd March 2020, said that the Government had no plans to change the law and would only be engaging in a ‘future review’ of the law of deeds.
The government has therefore decided to allow the signing of wills to be witnessed remotely, over video-link, bringing English law up to speed with similar provision already made in Scotland, Jersey, all of Australia, most of Canada, several states of the U.S.A. and Brazil.
There were some who thought this was already possible under the law as it stood. Ironically, since Parliament is presumed to be changing the law when it alters legislation, these changes will have the twin effects of proving such commentators wrong, and also absolving them of their mistakes
There were already a number of workarounds within the current law, such as having the two witnesses on the other side of a window, or even by having someone else sign on behalf of the person making a will.
Our advice would be to comply with the law as it stands, if you possibly can. The existing law is well understood, whereas we haven’t yet seen the exact wording of the proposed legislation, so we don’t know what ambiguities there may be. Under the proposed change, the witnesses will still have to sign the same document, so this has to be somehow transported to them for signature once the person making the will has signed it, creating a risk that it could be tampered with.
The temporary changes to the law are expected to remain in force for another 18 months, but that may be shortened or extended depending on the progress of the pandemic.
Social distancing measures have also given rise to other concerns surrounding will-making by vulnerable people, who may feel very isolated and easily pressurised into changing their will by those around them. This is going to be a busy period for probate advisers.