The Government has announced it will legalise the remote witnessing of wills in order to make it easier for people to express their final wishes during the pandemic.
The new rules will be backdated to 31 January 2020 and will remain in place until 31 January 2022, or as long as deemed necessary, after which wills will return to being made with witnesses who are physically present. The measures mean that wills can be witnessed via video link and still be legally recognised.
This is a very radical change to a 183 year old legislation (the Wills Act 1837) which states that a will must be made ‘in the presence of’ at least two witnesses. This has been understandably difficult for people who have been isolating or shielding for most of 2020. These difficulties can now potentially be overcome through video link software such as Zoom or FaceTime.
Wills witnessed in such a way will be deemed legal, as long as the quality of the sound and video is sufficient to see and hear what is happening at the time. Most video conferencing platforms allow for meetings to be recorded although recent experience may tell us that such technology is not guaranteed to work every time!
It is important to remember that Wills still need to be signed by two witnesses who are not beneficiaries and electronic signatures are still not allowed. The Wills therefore have to be physically distributed and signed by the witnesses in an expedient fashion.
We have so far been continuing to facilitate physically witnessing of Wills during the pandemic, whilst maintaining social distancing throughout, in the gardens of clients’ homes or even in our firm car park. It is not necessary for anybody to come within 2 metres of each other in signing and witnessing Wills as the case law indicates that a Will is valid as long as witnesses have clear sight of the person signing it, something easily achieved from a distance of a few metres away. On the other hand, we have made great use of video software such as Zoom at the stage of taking instructions for Wills and Powers of Attorney for our clients.
We do welcome the change in the legislation as it should allow more people with an opportunity to record their last wishes in the comfort of their own home, which is very important.
In the longer term the Government will be considering wider reforms to the law on making wills and particularly where video link software becomes more common place in society, it may prove to be the case that the temporary new measures become permanent.