Video witnessing of wills expected to be legalised

Previously we have reported on the troubles that many will writers and their clients have faced in recent months when it comes to executing their wills. To be validly executed a testator must sign their will in the presence of two witnesses, but since the start of the Covid-19 pandemic social distancing measures, and eventually lockdown, have made meeting this requirement very difficult for many people. To overcome this problem the Ministry of Justice (MoJ) is expected to announce later this week that the video witnessing of wills is soon to become legal.

Earlier this year the Law Society announced that they were in talks with the MoJ to discuss what emergency measures could be put in place to allow for wills to be validly executed safely during the pandemic. One such suggestion was to allow for wills to be witnessed remotely by video link using apps such as Zoom or Skype; methods that will writers and their clients have become increasingly familiar with over the last few months as many have adapted to taking instructions remotely using the same technology.

Interestingly the Law Society for Scotland announced back in April that it was acceptable for Scottish practitioners to witness wills remotely, but the Law Society for England & Wales made it very clear that remote witnesses wasn’t acceptable here.

This move towards video witnessing would mean the current requirement in the Wills Act 1837 that the witnesses need to be ‘present’ would no longer be strictly interpreted as physically present. It would place more weight on the witnesses having line of sight of the testator signing their will, which of course can be achieved by video link. A good example of legislation needing to be updated as time moves on, as when the Wills Act 1837 was drafted some 183 years ago legislators could never have foreseen that it would be possible to witness a signature without being physically present!

The MoJ are expected to announce that this change to the law allowing wills to be validly witnessed by video link will have retrospective effect. It will apply to any wills executed after 31^st January 2020. This means that any testators who have resorted to video witnessing in recent months can breathe a sigh of relief as their wills will be valid with no need for them to be re-signed at a later date.

For now this isn’t expected to be a permanent change though. It is believed that the change will be reviewed again in two years’ time.

Watch this space! We’ll update you with more information when the MoJ make their official announcement.