The UK government is taking steps to expand the way people can witness the signing of Wills.
The Ministry of Justice (MoJ) said it is going to amend the law in September 2020 to add videoconferences as a legal way to witness the making of a Will, “as long as the quality of the sound and video is sufficient to see and hear what is happening at the time”.
The measure will be backdated to 31 January 2020, the date of the discovery of the first covid-19 case in the UK, meaning that any Will that was witnessed via video during lockdown can be valid.
The amendments will remain in place until 31 January 2022, or as long as necessary.
However, the law will revert at some point.
Justice secretary and lord chancellor Robert Buckland 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 decision comes at a time when families, more than ever, are trying to sort out their estate planning, due to the uncertainty brought by the outbreak of covid-19.
Case study
Amanda Noyce, partner in the contested Wills, trusts and inheritance disputes team at Royds Withy King, told International Adviser this is a needed solution, especially for those who wanted to sort out their affairs during the pandemic.
“We are delighted about the change in the law to legalise Wills witnessed via video. It is a vital solution for families, and one which we have provided during lockdown to our clients, where necessary.
“There has been a sharp increase in instructions for Wills since the coronavirus crisis, with people wanting to take steps to put their affairs in order, as the risk played on everyone’s mind.”
Noyce and her team dealt with a client during the coronavirus peak who wanted to make a Will but couldn’t have physical witnesses because of the safety measures that were in place.
“In the early days of lockdown, we acted for a very ill individual with covid-19, taking instructions from him via a WhatsApp video call. Using the video facility, we were able to check that he was alone in the room to ensure he was not being coerced,” she added.
“We then recorded his wishes. A draft Will was emailed to him. In a second video call to execute the Will, the client instructed the solicitor to sign his Will on his behalf, whilst the client watched on the video. Then the solicitor and his wife signed the Will as witnesses.
“To be sure, however, we advised that the will should be re-executed in conventional fashion should the client recover. In fact, happily in that case the client did recover and so was able to re-execute his Will – although now the new law would assist in any event.
Noyce continued: “The introduction of the retrospective law will reassure thousands of people who might be concerned that Wills executed during lockdown over a video call would have no legal force.”
Outdated legislation
But backdating the amendments could raise issues around fraud, protection and the quality of the Wills made.
Paula Myers, partner and national head of tax, trusts and estates; and Will, trust and estate disputes at Irwin Mitchell, said: “Witnessing Wills has been in a complete state of flux since lockdown hit, drawing attention to the outdated nature of our current legislation, so any steps towards modernising the system are cause for cautious optimism.
“The Ministry of Justice needs to be careful that any changes to the rule can’t be exploited for abuse; the rule was in place to protect the vulnerable and to avoid fraud, so their interests must be front and centre of any changes.
“Backdating the legislation to take into account Wills signed under lockdown also raises questions as to what the standards will be, and whether they need to be witnessed again under the new legislation. We’ll be keen to see the detail on this issue.
“So long as careful care is taken to ensure the witnessing of a Will is properly recorded and there are no issues or potential undue influence behind the camera or mobile phone, then it will be a welcome change,” Myers added.
Protection must come first
Charles Hutton, partner at Charles Russell Speechlys, welcomed the move like many other legal professionals, but he still has questions about how the safety of a person can be guaranteed and what measures should be in place to avoid coercion.
“It is welcome news that the government has relaxed the rules about the witnessing of Wills, bringing England in line with many other countries,” he said. “However, concerns remain that this process will be open to abuse.
“How are the witnesses to know that, just out of camera shot, there is not someone putting pressure on the testator to sign? Admittedly, the current system is not perfect, but we may see a spike of undue influence cases following the deaths of those who have signed their Wills in this way. The advice has to be to use the traditional method wherever possible.”
