Video witnessing: January deadline looms

The COVID-19 pandemic catalysed unprecedented changes in many fields, including the legal sector. A significant amendment to the Wills Act 1837 exemplifies this shift.

This amendment, introduced to accommodate the challenges posed by the pandemic, allowed wills to be validly executed if witnessed via video-link, adhering to the guidelines of the Wills Act 1837 (Electronic Communications) Amendment) (Coronavirus) Order 2020 (SI 2020/952). Initially set for two years starting January 31, 2020, this order was later extended to include wills executed until January 31, 2024.

As we approach the end of this period, there’s no indication of further extension, leading to speculation and varied opinions within the legal community. Ally Tow, Litigation expert from Boyes Turner, commented on the implications of this change. She said:

“Given the fact that we are halfway through January 2024 I think we can reasonably safely assume that the amendment to the Wills Act introduced for a specified period until 31 January 2024 to provide for witnessing of wills by way of video-evidence will now come to an end.  From a practical point of view this will mean testators will once again have to ensure wills are witnessed in ‘the old fashioned’ way, i.e. with the testator and witnesses meeting face to face and in accordance with the strict provisions of Section 9 of the Wills Act.

Whilst this does mean there will be less flexibility for testators in the way in which wills are witnessed, I have always had concerns as regards the validity of execution of wills by way of video with an enhanced risk that a will would be found not to have been validly executed after the testator’s death resulting in a distribution of their estate not in accordance with their purported preferred wishes.”

Tow also said that the law as regards witnessing of wills is “out of date” and “needs to be modernised”. She continued:

“I just don’t think the amendment as currently drafted is sufficiently robust enough to promote the validity of wills witnessed in this manner.  In this respect, I welcome the fact that the Law Commission is reviewing the position.  It is perhaps a shame that the review is now unlikely to be available and/or the law modernised for the long term before the current amendment ends.”

Ian Bond, Partner specialising in Lifetime and Estate Planning at Irwin Mitchell said:

“The Order temporarily added the following to section 9(b) of the Wills Act: “For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills made on or after 31 January 2020 and on or before 31 January 2024, ‘presence’ includes presence by means of video conference or other visual transmission”. At the time the guidance was that this should only be used if the person making the will was vulnerable and there was a risk for them meeting with others or they are required to isolate. However, nothing prevented this method being used as a lifestyle choice by clients who preferred to receive their will and have it witnessed over a series of video calls.”

He said that he is sure that this will be on the agenda at the Ministry of Justice who will give some “clear direction on the course of action that they are going to take once they are able”. He continued:

“I would hope that this would be a further extension to the temporary extension of section 9(b) of the Wills Act to allow time for the Law Commission to consider its response to the wills reform consultation with the Ministry of Justice. I very much welcome the fact that electronic wills could become a reality with the new legislation given the developments in technology and it will be for the Law Commission to set out how the law on will making can be reformed for the modern age whilst also protecting the needs for the elderly and vulnerable.”

Jade Gani, CEO and Head of Private Client at Circe Law Ltd, said that she does believe that it was appropriate to allow video witnessing of wills during the pandemic as an emergency measure. She added:

“Many Clients who required wills were isolating, in wards with no access and/or unable to meet with witnesses in person due to the government rules. Therefore, there was a pressing need to adapt to the circumstances.

I am, however, hesitant to support video witnessing of wills for convenience rather than necessity. This is because 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.”

What’s more, Richard Thomas, Partner at IDR Law, said that the face-value validity of a will is “still governed by section 9 of an act made in 1837”.  He continued:

“For nearly two centuries, therefore, there has been certainty as to what is required for a will to be valid on its face. Covid changed that for good practical reasons, but unless this change is extended beyond 31 January 2024 into something more permanent, this very brief and unique interlude in the established law risks catching will writers and ordinary people out. In the immediate term, it is difficult to see how the cessation of the amendment can be communicated widely enough and clearly enough to ensure that everyone is aware of the changes. It is highly likely that a number of people will be caught out after 31 January 2024. Longer term, practitioners will also need to ensure that they do not forget how the Wills Act 1837 was changed for four years back in the dim and distant past!”

As the legal community awaits the Law Commission’s Wills Bill 2024, there’s a collective hope that it will address the challenges and opportunities presented by technology in the execution of wills.

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