The Government have announced that they will not be extending the emergency measures put in place during the Covid-19 pandemic for witnessing wills by video link.
Harriet Greener, Solicitor in our Contested Trusts and Probate team looks into the Government’s decision.
During the pandemic, the creation of wills received a lot of attention. There was a surge in people wanting to update their wills to ensure that their will accurately reflected their wishes, and also in people who wanted to create a will who had never done one before.
However, during the pandemic the social distancing and lockdown restrictions made the process of making wills difficult.
The Government recognised the challenges faced by those wanting to make a will and who were also shielding and isolating. To help people overcome these challenges, the Government amended the Wills Act 1837, to allow for wills to be witnessed remotely.
What were the previous requirements for creating a will?
Prior to the Covid-19 pandemic, Section 9 of the Wills Act 1837 stated:
“No will shall be valid unless –
- It is in writing and signed by the testator or by some other person in his presence and by his direction; and
- It appears that the testator intended by his signature to give effect to the will; and
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- Each witness either –
- Attests and signs the will; or
- Acknowledges his signature,
In the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
In simple terms a validly executed will was:
- In writing
- Signed by the person making it (‘the testator’), in the physical presence of two independent witnesses; and
- The witnesses have signed it in the presence of the person making it.
Consequently, arranging the execution of a will was a relatively straightforward process.
Why was witnessing wills by video link brought in?
Lockdown restrictions suddenly created the need for change and so the Government amended the Wills Act 1837, by virtue of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (“the Order”).
As of 21 January 2020, Section 9 of the Wills Act was amended to include the following wording:
“For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made after 31 January 2020 and on or before 31 January 2024, “presence” includes presence by means of video conference or other visual transmission.”
The effect of this wording means that witnesses to wills do not need to be physically present at the signing, but could be legally present, over a video link.
When are the emergency measures of witnessing wills by video ending?
The process of video-witnessing wills was applied for an initial two-year period from 31 January 2020, but was then further extended to 31 January 2024.
Without a further extension, or the amendment being made permanent, witnessing a will via a video-link is no longer permissible.
Legal practitioners had been awaiting any last-minute extension announcement from the Government, but none was forthcoming. As such, wills can no longer be witnessed by video link.
Why wasn’t this emergency measure for witnessing wills by video made permanent?
The amendment was only ever intended as a temporary, emergency measure, to allow for video-witnessing during the pandemic and to overcome the hurdles created by social distancing and lockdown restrictions. The law adapted to a crisis.
The majority of practitioners are of the view that given the pandemic has ended, the temporary process is no longer necessary. Those practitioners have previously raised concerns such as:
- Video-witnessing allows for a higher risk of undue influence being exerted over the testator.
- Video-witnessing allows for a higher risk of wills being executed where the testator does not have capacity to make the will.
- Video-witnessing allows for a higher risk of creating fraudulent or forged wills.
Most practitioners only used video-witnessing as a last resort and still preferred to have witnesses in person.
However, there are some practitioners who were of the view that the option to video witness wills should be made permanent as it gives people more flexibility and uses modern technology.
The Future
It is too early to fully appreciate the impact that video-witnessing wills may have on wills and estate administration.
Legal professionals are anticipating a rise in claims concerning a will’s validity, where the will in question was witnessed by video link. Only when a number of those claims have gone through the Court process, will it be possible to evaluate the impact and whether the temporary measure was abused or not.
The Law Commission recognises the public’s desire for the digital signing of documents and has therefore undertaken a consultation, which ended in December 2023. The result of that consultation is eagerly awaited.
Unless the Government makes a U-turn and reintroduces video-witnessing of wills, this is no longer an option and witnesses must be in person.
The ability to witness a will’s execution has ended.
How can Morr & Co help?
If you have any questions or would like any further information on the content of this article, please do not hesitate to contact Morr & Co’s Contested Trusts and Probate team, who will be happy to help.
Contact us today on 01737 854 500 or email [email protected] to make an appointment to find out more.