Currently, the law states that a will must be made ‘in the presence of’ at least two witnesses, as a mechanism to stop coercion or fraud. Under lockdown, this has become an increasingly difficult standard for many older people to meet - especially those shielding. Some have already turned to virtual solutions like Zoom and FaceTime to secure witnesses, despite there being no legal certainty that such virtual solutions would hold legal weight.
In response to this, the government yesterday announced that they would be changing the law via a statutory instrument, which will be laid in September, to make it clear that wills witnessed through online video calling are indeed valid during lockdown. This will and made retrospective to 31 January 2020 - the date of the first known COVID-19 case to reach the UK - to cover those who made wills during lockdown.
The measures will apply to England & Wales and remain in place until January 2022 however they can be shortened or extended if deemed necessary. After this point wills would return to being made with witnesses who are physically present.
Crucially, the move maintains the vital safeguard of requiring two witnesses – protecting people against undue influence and fraud.
Justice Secretary & Lord Chancellor, Rt Hon Robert Buckland QC MP, said:
We are pleased that more people are taking the incredibly important step to plan for the future by making a will.
We know that the pandemic has made this process more difficult, which is why we are changing law to ensure that wills witnessed via video technology are legally recognised.
Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable.
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. Wills witnessed through windows are already considered legitimate in case law as long as they have clear sight of the person signing it.
Simon Davis, president of the Law Society of England and Wales, said:
The government’s decision to allow wills to be witnessed remotely for the next two years will help alleviate the difficulties that some members of thepublic have encountered when making wills during the pandemic.
The Law Society is glad to see that guidance has been issued to minimise fraud and abuse. We look forward to working with government to ensure the reform is robust and successful.
Emily Deane, Technical Counsel at STEP, said:
We are delighted that the Government has responded to the industry’s calls to allow will witnessing over video conference. By removing the need for any physical witnesses, wills can continue to be drawn up efficiently, effectively and safely by those isolating.
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STEP also welcomes the move to apply this retrospectively, which will provide reassurance to anyone who has had no choice but to execute a will in this manner prior to this legislation being enacted. We hope the policy will continue to evolve and enable more people to execute a will at this difficult time.