Witnessing of Wills by video-link legalised
The Government has passed legislation this month known as The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, which is due to come into force on 28 September 2020.
The main amendment introduced by the Order is to the meaning of “presence” when witnessing a Will.
It is now permissible for those witnessing a Will to do so, not only in the physical presence of the Will maker, but also by means of video conference or other visual transmission.
The Order will be backdated to apply to Wills that have been executed from 31 January 2020 and is due to remain in force until the 31 January 2022.
However, as this is a topical area, it should be kept under constant review and further legislation may be required.
We have seen in recent days that the Government has re-introduced stricter social distancing measures due to a rise in the number of reported Covid-19 cases and, as such, the Order may now be more necessary than ever.
Guidance released on remote witnessing
The Ministry of Justice has released helpful guidance which should be followed by those who decide to have their Will witnessed remotely and can be found here.
Important points to consider for remote witnessing
Although the Order has introduced a major temporary reform to the Wills Act 1837, there are a number of important points to be mindful of when deciding whether to use remote witnessing.
Firstly, the Will maker is still required to physically sign their Will. This cannot be done electronically because this is thought to create a number of potential risks, including fraud and undue influence.
If the Will maker wants a third party to sign their Will on their behalf, this person must be physically present with the Will maker. They are not permitted to sign the Will remotely.
The potential pitfalls – “the last resort”
We have previously published an article which addresses a number of the potential problems and dangers associated with remote execution.
These concerns have been acknowledged by the Government which has suggested that remote execution should be chosen as a last resort. Conventional methods of execution should be used where possible.
A leap in the right direction?
The Order has been welcomed by many and some would even argue that it is well overdue.
Remote witnessing will not only benefit those who are self-isolating but the Order may also make it easier for people to find the time to make a Will.
However, opting to choose remote witnessing will require extra precautions to be taken and it is anticipated that we will see a rise in contentious matters. As this is a developing area of law, we will continue to monitor these changes closely. We will be interested to see whether the change, which has been introduced as a temporary measure, becomes a more permanent fixture if it is deemed a success.
You are also most welcome to contact one of our other solicitors in the Disputed Wills and Trusts team and their contact details can be found here.