Video witnessing of wills during Coronavirus pandemic to be legalised

The outbreak of Coronavirus and the risk it poses to our health has led to an increased demand for people wanting to put a Will in place. At the height of the lockdown, social distancing rules meant that the strict legal requirement that Wills must be signed in the presence of two independent witnesses could not be easily observed.

This led to some Will makers signing their Wills whilst two people witnessed their signature by video-link. Some argued at the time that this process was within the meaning of the current legislation and satisfied the two-witness rule, but there was no legal authority to back this up.

New legislation

Following extensive discussions between The Law Society and The Ministry of Justice, the government announced this week the introduction of temporary legislation to allow people to use a video-link to witness the signing of their Will. The legislation will be a Statutory Instrument pursuant to section 8 of the Electronic Communications Act 2000. In a further step, it was announced that the legislation will be retrospective and apply to Wills made since 31 January 2020, thereby including video-link Wills made during the Coronavirus pandemic. It is anticipated that the legislation will take effect for a period of two years ending on 31 January 2022. 

The government has issued guidance as a means of ensuring Will makers are able to take all necessary steps to reduce the risk of invalidly signing their Wills. This guidance includes helpful practical examples of how Will signing by video-link can work. Click here to view this guidance.

Best practice

The new legislation represents a significant and welcome change to the current legislation which until now had been unaltered since 1837. Lawyers will inevitably maintain that it is best practice that Wills are witnessed in the physical presence of two witnesses as ultimately this is the most effective method of guarding against Wills being made by people who lack the necessary mental capacity to make a Will or may be acting under the influence of others. However despite the current optimism that the worst Coronavirus has to offer may have passed, the alarming trends in Europe and current incidences of local lockdowns in the UK (many of which go unreported) tell us that the witnessing of Wills by video-link is likely to be a helpful aid to ensure our vulnerable clients can still make a Will without exposing themselves and their loved ones to unnecessary risk.

More information

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This article was written by Matthew Edwards, Partner in the Private Client Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2020.