11 August 2020

Remote witnessing of Wills

By Miranda Marshall, Director, Hayes + Storr.

The law of Wills in England and Wales is to be amended to allow the remote electronic witnessing of Wills under certain conditions. A Statutory Instrument under the Electronic Communications Act 2000 will implement the change. The news has been cautiously welcomed in the legal press.

Currently, under the 1837 Wills Act, a Will must be executed by the Testator (i.e. the person making the Will), ‘in the presence’ of two witnesses, present at the same time.

Some Testators have already used remote video-meeting platforms to arrange the execution of their new Will, hoping that the phrase ‘in the presence of’ would later be interpreted by the courts to include virtual-witnessing via electronic link. There is old case law stating that the witnessing ‘in line of sight’ is valid.

The Ministry of Justice (MoJ) has now declared that Wills and Codicils witnesses by video link will be upheld, as long as the quality of the sound and video is sufficient for the parties to see and hear what is happening at the time. The new law is to last for two years and is retrospective from 31st January 2020.

Remote witnessing is only being authorised in an emergency, as ‘a last resort’, and Testators are being asked to arrange the physical witnessing of Wills where it is safe to do so. Strict precautions must be taken to deter fraud or undue influence.

The MoJ recommends that Testators at a remotely-witnessed Will signing should make a formal statement that ‘I, full name, wish to make a Will of my own free will and sign it here before witnesses, who are witnessing me doing it remotely’. Signatures must be ‘wet’. The whole process should be recorded and the recording retained along with the Will.

The Will, signed remotely by the Testator, then needs to be sent physically to both of the two witnesses, who should sign and write their name, address and occupation in the traditional way.

For a person who is shielding, the question of how to get the Will to the witnesses remains a problem. Either they need to go out of the house to post it, or someone will need to collect it, in which case they could probably have arranged for witnesses to see them sign the Will in person, through an open door or window.

Arguably, it was not necessary to bring in these changes. To meet the demand for Wills, and to stick to social-distancing guidelines during lockdown, solicitors have had to find inventive new ways of getting Wills signed, with neighbours witnessing Wills over the garden fence and documents passed between cars 2 metres apart.

The legal profession lobbied for judicial powers to allow Wills, where formal signing procedures were not met, but where otherwise the legal requirements were met. This would have required primary legislation, which would have meant an Act of Parliament; so rather, these temporary remote-witnessing measures were introduced.

Guidance has been issued to minimise unintended consequences and to ensure validity. However, there are still many unanswered questions, such as: what if the Testator dies whilst the Will is being posted to the two witnesses for them to sign?

The new law will inevitably create an increase in disputes after the person has died, and evidence of remote witnessing is unlikely to be as convincing as it would be in person.

For those with no disability or vulnerability this new option could be a great help, although when you look at the subsequent procedures required, you may well think that it is just easier to find two independent witnesses and sign within each other’s ‘line of sight’ in a single step, in the time-honoured fashion.

Some lawyers have praised the changes saying that, at last, the legal profession is moving with the times and embracing modern technology. I have severe misgivings should the remote witnessing process be used by the vulnerable, and see too many ways in which abuse could arise.

What is clear is that new robust reforms for the signing of Wills are needed and that making these changes to the law in times of a pandemic is far from ideal.

If you would like further advice on this matter please contact Miranda on 01328 713913. If you require advice on any other legal matter call 01328 863231 or email law@hayes-storr.com.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

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