Good news for testators … but too little too late?

Posted: 29/07/2020

The Government has announced an intention to introduce new legislation to allow wills to be witnessed by video technology from September 2020.

Currently wills must be executed in the physical presence of two witnesses. The witnesses must be able to see the testator physically sign their will, which can be difficult to implement under social distancing rules and Covid-19 requirements.

The draft legislation has yet to be published but is expected to be introduced in September 2020. It will amend existing legislation and it has also been announced to be retrospective. Wills that have used video-witnessing from 31 January 2020 will be legally acceptable. The change is temporary; it will remain in place until 31 January 2022, or as long as deemed necessary, after which wills must return to being made with witnesses who are physically present.

The Government has also confirmed that the draft legislation will retain important safeguards to ensure the legal validity of a will. It will remain a requirement that two people witness a will to protect against fraud and undue influence.

The legislation is welcome and will be of assistance in particularly difficult situations where individuals cannot be physically present; for example, in the same room due to social distancing and Covid-19 requirements. We are reviewing what video-witnessing will mean in practice but one option is that it will allow two witnesses to view the will being executed by video and then their signing of the will also to be viewed by the testator (the individual signing the will). Only one will can be signed and electronic signatures will not be permitted (according to the Government’s announcement). We will be able to provide further details once the legislation is published.

Certain elements of the legislation also still require further clarification and will necessitate careful monitoring during the execution of a will.

The Government has stated that the use of video technology should remain a last resort and people must continue to arrange physical witnessing of wills where it is safe to do so. In addition, wills using video-witnessing can only be valid provided the quality of the sound and video is sufficient to see and hear what is happening at the time. To ensure these conditions are complied with and that the will remains legally valid, it will be important to take legal advice and review the contents of the legislation carefully.

Having the requisite capacity, acting freely and without undue influence,  and fully knowing and understanding the contents of the will and its effect are also essential elements for it to be valid. Signing in circumstances where any of these can be doubted or challenged can leave a person’s estate vulnerable to a will being invalid, potential claims, costs and litigation in future. To counter such claims, signing before two independent witnesses in person, and ideally before a solicitor, is still recommended and preferred where possible. It ensures the will’s execution is documented and a record retained of the procedures followed.

Speaking of the changes, Clare Archer, head of the private client team at Penningtons Manches Cooper, stated: “We welcome the proposed Government reforms to introduce video-witnessing for wills in response to numerous requests from the legal profession. It may assist our clients with the challenges of Covid-19 and the execution of wills during these difficult times.

“We await the publication of the legislation in September with interest, and advise that individuals proceed with caution before the final legislation is published and we have full details of the reforms. We suggest individuals discuss the execution of their will with us, before employing video-witnessing or contact us if they have used video-witnessing, to ensure in either situation the legislation is properly applied and their will is valid .

“Based on the current plans, we understand that individuals will also require additional advice, for example, when video-witnessing can be utilised and the appropriate technology to deploy to ensure a will is properly executed under the legislation.

“We also wondered if the Government will relax witnessing rules for other private client documents such as lasting powers of attorney or certain deeds. The same rationale for enabling important and time-critical arrangements to be put in place applies in these situations, but the Government has not commented on such procedures. We will be watching out for the clarification, and potentially some expansion, of these rules.”

If you need advice relating to any of the subjects discussed in this article, please do get in touch as a member of the private client team will be able to discuss your concerns with you.

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