Witnessing of wills by video to come to an end?

The law on valid wills

Prior to the amendment, wills were only valid if executed in accordance with Section 9 of the Act which provides:

“No will shall be valid unless-

(a) It is in writing and signed by the testator or by some other person in his presence and by his direction; and

(b) It appears that the testator intended by his signature to give effect to the will; and

(c) The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(i) Attests and signs the will; or

(ii) Acknowledges his signature,

In the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

 

The amendment for witnessing a will

The Act was amended by virtue of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (“the Order”) and came into force on 21st January 2020. Under the Order Section 9 of the Act was amended to add the following wording to Section 9(b):

“For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made after 31 January 2020 and on or before 31 January 2024, “presence” includes presence by means of video conference or other visual transmission.”

 

What's next for video-witnessed wills?

Without any further extension to the amendment, practitioners and testators must be aware that witnessing of wills by way of video link will no longer result in a validly executed will for any will witnessed after the end of January 2024.

Whilst this does mean that testators will not have the same degree of flexibility as regards witnessing of wills unless the amendment is extended and/or the law permanently updated, the amendment was only ever intended to allow video witnessing as an emergency measure because of the pandemic. With clients isolating, in hospital or care homes with no access and unable to meet with witnesses in person due to lockdown restrictions at the time, the amendment provided a pressing need to adapt the law due to the circumstances in place at the time. However, many practitioners expressed concerns as regards the amendment and the potential risks of undue influence being exerted on testators in relation to the witnessing of the wills. Other considerations such as whether the testator had the necessary testamentary capacity to execute a will and fraud were also a concern for practitioners. Accordingly, practitioners have continued to only adopt witnessing of wills in this manner as a last resort.

 

The witnessing of wills for digital development

It is too early to fully appreciate the extent to which witnessing of wills by way of video conference facilities may, or may not, have had an impact on potential claims and if it was open to abuse. This will only be possible once enough cases have passed through the court. In the meantime, whilst the Order was introduced because of a pressing urgent need to adapt the law, it has once again highlighted the fact that the law as regards the execution of wills generally does need to be modernised.

This is on the Law Commission’s agenda, with the Commission recognising that in today’s society there is an increased recognition of digital documents and signatures in other contexts as well as huge developments in technology. The project initially began as long ago as 2016, but a supplemental consultation paper was issued last year to expand the review to include the possibility of electronic wills.

The consultation period ended in December 2023 and practitioners shall therefore now have to await publication of the Law Commission’s recommendations. In the meantime, practitioners and testators alike would be well advised to ensure that in the absence of any amendment to the Order, henceforth wills are once again executed in accordance with the provisions of Section 9 as it was before the amendment. Our wills, trusts, and probate team can assist with any legal queries on the witnessing of wills.

 

Do you need legal advice?

If you are looking for legal advice on the preparation and execution of wills, to protect and preserve your wealth, then please contact our wills, trusts, and probate team on [email protected]. Alternatively, read more on how we can assist with preparing wills at all levels of complexity.