The law relating to wills in England & Wales is to be amended so that wills can be witnessed remotely under certain conditions and shall still be valid.
The change will be put into legislation later this year but will be backdated to 31st January, with the intention that any wills made during the pandemic would potentially be covered.
The current rules on social distancing would have prevented many people from signing their wills in the physical presence of two independent witnesses in accordance with the legislation concerning the signing of wills, although there have been suggestions that a will would be valid if the witnesses were able to watch using remote video meetings. Old cases suggest that provided the witnesses had a clear line of sight to the person signing the will then the will would be valid, but this had not been tested with video conferencing. Indeed, it could be many years after a will was signed before somebody died and only then would the will potentially be challenged.
However, it should be noted that remote witnessing should be seen as a last resort and the signing of wills in the physical presence of two independent witnesses should be regarded as standard practice, provided it is safe to do so and relevant guidelines for social distancing are followed.
Where remote witnessing is used then strict precautions will need to be taken to deter fraud or undue influence. The proposals also make clear that witnesses cannot watch a pre-recorded video of the person signing. The electronic signing of wills is not allowed, and the process should be recorded so that it can be kept as a permanent record. This in itself could raise further complications and where possible, a will witnessed remotely could perhaps be re-signed when it is safe to do so, so as to avoid potential challenges or issues in the future.
The amended law will stay in place until January 2022, but this date could be changed and once the period is finished, then the only option will be to follow the rules which require the witnesses to be physically present.
If you would like to discuss the preparation or amendments to a will or a potential challenge to a will please contact Patrick Green on +44 (0)20 7354 3000 or [email protected].
