Extension of remote witnessing of wills

The new measures, introduced in September 2020 but backdated to January 2020, were brought about as a response to the increased demand regarding practical difficulties in the execution of wills during the Coronavirus pandemic and at a time when the country remained under very lockdown restrictions.  There were viewed as a temporary measure to remain in force until 31 January 2022, although there was provision for them to be extended, or indeed shortened.

Now the Government has announced that these measures will be further temporarily extended until 31 January 2024 and whilst guidance remains that video-witnessing should still only be considered as a last resort, is there now a risk that this will be considered “the new normal”?

Alongside the extension of the measures, the Government has also announced that the Law Commission will now be reviewing reforms to the law surrounding wills, including whether these changes should now be made permanent but that could have happened without an extension to the temporary measures.

Was it necessary to extend?

A survey conducted by the Law Society at the end of 2021 found that practitioners continued, in the main, to find ways to make sure wills were witnessed in the “usual” way, i.e. with both witnesses being physically present when the testator signs the will.  Indeed, only 14% of the practitioners surveyed by the Law Society stated that they had used the remote witnessing procedures.  Of these, 58% said they would use remote witnessing if it continued to be an option with 35% saying they would not and 7% saying they did not know.  As the country begins to find its way out of the pandemic and with restrictions being eased all the time, there must be doubt as to whether it was necessary to extend the measures further.

Are there other reforms which could be introduced?

Of course, the measures have been a useful option to have for those small occasions when, for whatever reason, it was just not possible to execute wills in the usual way.  Practitioners and testators alike have become very inventive over the last two years about how to witness wills to ensure compliance with the usual provisions of the Wills Act but there have been and always will be some circumstances where this is simply not possible.  However, as the responses to the Law Society’s survey appear to support these cases have been in the minority over the last two years and are therefore unlikely to increase in any significant numbers in the future as the effects of the pandemic diminishes.

So would a change of law regarding how the question of validity of wills should be decided be a better option?  Currently, the question of whether a will is valid or not is considered by reference to a strict interpretation of the Wills Act.  This can often result in the will being invalid on what might be considered a technical reason.  The consequences of the will being held to be invalid may often mean that the testator’s estate would not pass in accordance with the testator’s wishes – the estate being distributed in accordance with a previous will, if found valid, or if there is no previous will or any previous will is found to be invalid, in accordance with the Intestacy Rules.

The President of the Law Society of England and Wales, I. Stephanie Boyce said, in response to the Government’s latest announcement that “The Law Society continues to take the view that in the longer term the most effective reform of the law would be to give judges powers to decide on whether wills are valid in individual cases.  They could then recognise the deceased’s intentions even where they have a will which may not have been witnessed in line with the Wills Act, so their estate is inherited as they intended.”

How effective are the changes?

Making its announcement this month, the Ministry of Justice said that the extension would give vulnerable people “peace of mind” that their wills would be legally recognised and would “reassure all those who need to use this provision that their final wishes are legally-recognised as witnesses previously had to be physically present”.  But are those views shared by practitioners themselves?  73% of those surveyed by the Law Society said they would not use remote witnessing after the pandemic, citing a heightened risk of undue influence, difficulties in assessing their client’s capacity to make decisions when conducted remotely and future claims as regards the validity of the will.

Given that the question of validity of a will is only considered after someone’s death it could be some time before we are able to assess the effectiveness or otherwise of these changes and whether they should become “the new normal” but given the guidance and the potential pitfalls which continue to exist with remote witnessing, testators would be best advised to continue to use the “usual” procedures regarding witnessing of wills.  In the meantime, the sector awaits with interest the outcome of the Law Commission’s review of the law.