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Where there's a will there's a remote possibility of a way

03 August 2020. Published by Simon Love, Senior Associate and Will Sefton, Partner

In the face of the global COVID-19 pandemic the government has acted to change the law to allow wills to be witnessed remotely.

As every solicitor knows, by virtue of the Wills Act 1837 the signatures of two witnesses, made in the physical presence of the testator, are required for a will to be valid in England and Wales.

The introduction of social distancing requirements during lockdown proved a challenge for solicitors seeking to have wills executed, with tales of neighbours witnessing signatures over garden fences and clients passing documents between cars parked the requisite two metres apart.

The government has responded to concerns raised by the Law Society about the difficulties faced by some members of the public in trying to make their wills. With retrospective effect from 31 January 2020, being the date of the first COVID-19 case in the UK, it will be permissible for a will to be witnessed remotely (www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing). Legislation is due in September and the change is expected to remain in place until 31 January 2022 or for as long as deemed necessary.

In line with the existing law, whilst the type of video-conferencing or device is not important, the person making the will and their two witnesses must each have a clear line of sight of the writing of the signature. Witnessing pre-recorded videos will not be permissible and if possible the whole video-signing and witnessing process should be recorded and the recording retained.

However, the government decided not to allow electronic signatures or counterpart wills.

These changes will no doubt simplify will-making for some during the pandemic. The Law Society has been arguing for wider reform of the Wills Act 1837, including giving judges dispensing powers, and it will be interesting to see whether further reform is forthcoming, when the changes are reviewed in the future.

Claims against solicitors arising out of invalidly executed wills are surprisingly common. The government's pragmatic intervention is to be welcomed given the current public health situation, but we are concerned that the changes may open up practitioners to a new area of potential claims. They will need to master not only the new rules, but also the relevant IT. Taking the precaution of recording events (and maintaining the recordings) would be a good way to keep such claims at bay.