Virtual witnessing of Wills
On 25 July 2020 the Ministry of Justice (MOJ) announced that the government will be introducing new temporary legislation to allow wills to be witnessed virtually in England and Wales. The legislation will be backdated to apply to wills made since 31 January 2020 and is expected to remain in force until 31 January 2022, although the period may be shortened or extended if deemed necessary. It is anticipated that the legislation will come into force in September 2020. The intention is that the use of video technology in executing wills should be a “last resort” and that where people can make their will in the conventional way they should do so.
The proposed legislation will vary the requirement of “presence” for the purposes of section 9 of the Wills Act 1837 (WA 1837) to allow “presence” for those witnessing a will to include virtual presence via video link as an alternative to physical presence. The standard formalities for executing a will under section 9 of the WA 1837 will otherwise remain in force.
The MOJ has published detailed guidance on the proposed legislation including a stage-by-stage process for signing and witnessing a will by video link. This includes the requirement that the virtual witnessing needs to be recorded and stored electronically with the signed Will.
The Guidance can be viewed here.
The government has made it clear that this measure is designed to be temporary to deal with the particular difficulties thrown up by COVID-19 and has no immediate plans to allow further relaxations such as electronic signatures or counterpart wills.
Whilst the measure has been welcomed by STEP and the Law Society, caution is advised. The Law Society has noted that both professionals and the public will need greater clarity on when remote witnessing is appropriate and what to do in exceptional circumstances. For example, what happens if the testator dies whilst the Will is en-route to the witness for them to physically sign?
It is our view that these provisions should only be used as a very last resort in the most constrained circumstances. Given that the lockdown restrictions have been eased such that people can meet and be in the presence of each other (whilst safely socially distanced and wearing face masks) there should be very few circumstances where the witnesses cannot be in the physical presence of the person making the Will.
We are here to help. Where it is not possible for you to arrange your own witnesses, we may be able to arrange a meeting at our offices to do this. Meetings need to be pre booked and you will need to wear a face mask and bring your own pen. Weather permitting, we may be able to arrange a meeting outdoors if preferred. If necessary, we may be able to supervise and witness your Wills remotely if there is no other alternative. We would advise that where a Will is witnessed remotely, then the Will should be witnessed in the usual manner i.e. in the presence of two witnesses who are also in the presence of each other, at the earliest opportunity.
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