The government have confirmed that there will be no further extension to legislation which permitted the remote witnessing of Wills via video. In a statement in the House of Commons on Thursday 1st February, Parliamentary Under-Secretary of State for Justice Mike Freer said the special measure, which has been enacted for 4 years, will not be extended beyond 31st January 2024.
The temporary amendment to the Wills Act 1837 was announced in July 2020 in response to the national lockdowns which prevented people from meeting face to face during the COVID-19 pandemic. This lead to stories in the national press about Wills being witnessed through conservatory and kitchen windows, from one side of gardens to another, and on car bonnets. The amendment was formalised in September 2020 and crucially backdated to 31st January 2020.
The original amendment allowed for video witnessing until 31st January 2022; at which point it was extended for a further 2 years. Surveys suggest that take up of video witnessing was low; indeed guidance produced on the use of video to witness Wills advised that it was to be used as a last resort, and where practicable an in-person witnessing process should be completed as soon as possible.
A recent article by Today’s Wills and Probate identified there is appetite for modernisation of the witnessing process. There are high hopes that the work currently being done by the Law Commission may result in a fundamental and permanent change to the law; which is why, it could be argued, the current amendment has not been extended.
And while modernisation is broadly welcomed, as with the current work being done to modernise and digitise the process of creating LPA’s, there are concerns about the security and safety of the process, particularly for those who are vulnerable. CEO and Head of Private Client at Circe Law, Jade Gani adds
“… video witnessing has a whole host of other considerations in respect of potential claims as well as fraud, duress/undue influence and capacity. It is perhaps too soon to fully appreciate the impacts of video witnessing on claims, until enough time has passed to see test cases through the Courts. Whilst I am all for technological advances, I believe we must consider our most vulnerable Clients, and how best to protect them, when considering permanent changes.”
Mike Freer’s statement in full
“The Government is announcing today that it is not extending the legislation it introduced as a special measure during the Covid-19 pandemic to permit remote (video) witnessing of wills.
The legislation was originally introduced in September 2020, amending the Wills Act 1837 so the normal requirement that two people must witness the testator signing to make their will in person could be extended to include remote witnessing by video-link. The Government and professional bodies published guidance on the steps that should be taken where wills were video-witnessed.
This temporary legislation was a response to the practical difficulties of having wills witnessed whilst restrictions on movement to limit the spread of the virus were in force, and at a time when more people wanted to make wills. The Government has always provided guidance that video-witnessing wills should be regarded as a last resort due to increased risks of formalities not being properly followed or risk of undue influence”.
The Government decided to extend the temporary legislation for a further two years in February 2022. At the time the United Kingdom had only recently ended a further set of restrictions and there were concerns about further strains of the virus.
However, the special circumstances which applied when this measure was put in place no longer apply. In-person witnessing of wills is no longer subject to restrictions. As such we have decided not to extend the temporary legislation beyond 31 January 2024.”
The Law Society of England and Wales president Nick Emmerson said:
“During COVID-19, lockdown measures created significant challenges to ensure that wills were safely witnessed while adhering to government guidelines on social distancing. For this reason, remote witnessing of wills was a sensible policy in the pandemic.
Our recent survey of members who specialise in wills and probate found that half (50%) supported the use of technology in the will writing process following the pandemic.*
Video witnessing when making a will, obtaining probate or administering an estate, introduces a further level of risk which solicitors need to assess and manage. Therefore, the digital wills process needs to have an appropriate level of protection to address concerns about the risk of fraud and undue influence. It is also important to make sure that people who would struggle to make a will electronically are not disadvantaged.
We support the Law Commission, as part of its wills reform project, in considering the role of video witnessing alongside wider issues on the use of technology to facilitate will-making.”