How the coronavirus pandemic has changed the execution of wills
The coronavirus pandemic has delivered a substantial cultural change in the use of video conferencing technology. Since the UK went into lockdown in March 2020, many of us have spent hours in video calls with friends, family and colleagues and the value of this technology has become clearer, and something we have become more comfortable with. These circumstances have also led to a change in one of the most established laws there is: in July, the Government announced plans to legalise the remote witnessing of wills, amending the Wills Act which dates back to 1837, and bringing the execution of wills firmly into the 21st Century. The move is intended to make it easier for people to record their final wishes during the coronavirus pandemic, where in particular those who are vulnerable may prefer to conduct the will signing process from the safety of their own home.
Currently the law states that to be valid, a will must be signed in the presence of two independent witnesses at the same time, who must then sign in the presence of the testator. The new regulation, which will be backdated to apply to any will made from 31 January 2020, means wills will be legally valid if witnessed by video technology. This change is currently expected to remain in place until 31 January 2022, after which the regulation will default to witnessing in person, however as with other emergency legislation brought in response to the pandemic this may be shortened or extended.
The Government has been clear that the option of video technology should only be used when it is not possible to conduct the signing in person. There are no restrictions in the current guidance on the signing of wills from a safe distance, with the use of personal protective equipment, or for example through a window, as long as a clear sight of the person signing can be maintained. However, with all of us being encouraged only to travel when strictly necessary, it is likely the use of video conferencing for will signing will rise.
What do these changes mean for you?
What is this likely to mean for you or your client as these measures are introduced? Below are some key points to consider if you are thinking about using the option of video conferencing for will execution:
- The relatively simple change to the legislation is that where wills must be signed in the ‘presence’ of witnesses, the presence can now be physical or virtual. Note that two witnesses will still be required.
- The backdated change means that for the many people who may have already conducted signing via video conferencing over the past few months, their wills will be considered valid. However, this does not apply to wills where probate has already been granted.
- The guidance is clear that the change is not intending to allow for electronic signatures: a physical signature is still required due to the risk of fraud or undue influence.
- The guidance is also clear that the use of ‘counterpart’ wills will not be allowed.
- Guidance from the Ministry of Justice is that best practice would be for the video to be recorded: this represents an important change to current practice, where the validity of wills and undue influence can be demonstrated directly through the recorded footage.
- Detailed guidance outlines the steps that should be taken during the video conference, which includes that all parties can physically see the document being signed and the actual signing.
- Clear and high quality audio and video will be required to fulfil the requirements that witnesses have a clear sight of the signing, which may not be easy or reliable for those using home internet connections.
- Security online is always an issue, and vulnerabilities in various video conferencing platforms have been identified. Both solicitors and their clients will need to think carefully about the platform used for confidential discussions.
How we can help
Clearly, with this important change there is expected to be more detailed guidance emerging in the coming days and weeks. Some of the key points highlighted here may have important implications for the will making process. If you or your client is thinking about making a will, and would like to discuss the implications of video conferencing for execution, please speak to your usual Druces contact or: