After all the confusion, debate and concerns around the impracticalities and difficulties of signing and witnessing wills in person since lockdown restrictions were imposed in early Spring, remote video execution of wills is now legal – for now.
The Ministry of Justice’s announcement that legislation will be introduced in September to relax the rules as to the formal requirements for the execution of wills, as a ‘stop gap’ in the light of the pandemic.
Many people, including lawyers, gave a collective sigh of relief that their concerns had at last been taken on board though it has taken government a comparatively long time to act. Perhaps it was loathe to mess with a statute that has not been meddled with, for good reasons, for nearly 200 years. The requirements of the Wills Act 1837 require a testator to sign the will in the presence of two witnesses who must also sign it, otherwise it will be invalid.
The new legislation will allow wills to be witnessed by video if the quality of the sound and video is sufficient to see and hear what is happening at the time. Two witnesses will still be required. Importantly, remote witnessing must be a last resort – presumably in an attempt to reduce the risk of duress.
The rule change allows for signings to be made remotely, but there are two key things to note:
- The rule change will be temporary: it will remain in place only as long as necessary. That could mean it being extended – or cut short. At the moment, it will likely be in place for around 18 months.
- The rule change will have retrospective effect: This was an unexpected move and it means wills remotely signed from 31 January may still be valid, subject to them being otherwise valid.
Unsurprisingly, concerns have been expressed despite the temporary move being welcomed – albeit cautiously. The Law Society, for example, warned the change could “may cause confusion where steps have already been taken after a person has passed away without apparently having left a valid will”.
There are also warnings from the solicitors that the move could open the floodgates for more wills and estates disputes over the coming years, including on the basis of fraud or improper execution, for instance, where a family member has allegedly exerted undue influence on witnesses and or the testator off camera.
Alexander Learmonth, a barrister at New Square Chambers, says some thought video-witnessing of wills was already possible under existing law as it stood, but he believes it would have been “hugely risky to proceed on that basis”.
He considers it best to comply with the law as it stands if possible. He says: “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.”
Practitioners will welcome the government guidance that has been issued, which includes illustrative scenarios in which video-witnessing might be appropriate. However, it does not consider the potential for fraud or undue influence, checking authenticity of recordings of signings, storage of recordings, and similar.
It is expected that the Law Society will release its own guidance in due course which practitioners should watch out for.
This is unlikely to be made a permanent rule change – at least in the short term. In the longer term, the Law Commission has been considering law reform around the execution of wills for some time.
The temporary change, along with whether there will be any wills disputes as a direct result, will serve as an acid test for potential future change.
Written by Nicola Laver, a non-practicing solicitor and a qualified journalist. She is also editor of Solicitors Journal.