Wills witnessed over Zoom and Skype are to be legalised, as the government ushers in a major overhaul of probate legislation in the wake of Covid-19. 

A statutory instrument allowing wills to be witnessed remotely in England and Wales will be laid in September. New rules will allow testators' signatures to be witnessed using video conferencing software, such as Zoom, Facetime and Skype. Once a will has been signed by the testator it can be posted to witnesses, who sign it themselves during live action web conferences.

The Wills Act of 1837 currently requires two witnesses to be in the physical presence of the testator, in order to protect people against undue influence and fraud.

The reforms will be backdated to 31 January 2020 - the date of the first confirmed coronavirus case in the UK – meaning any will witnessed by video technology from that date onwards will be legally accepted, providing the quality of the sound and video was sufficient to see and hear what was happening at the time.

However, the government has said the use of video technology should remain a last resort.

According to a statement released by the Ministry of Justice, the statutory instrument will remain in place until 31 January 2022, or as long as deemed necessary, after which wills must return to being made with witnesses who are physically present. However, the Law Commission has been asked to devise a more permanent solution.

The lord chancellor, Robert Buckland QC, said: ‘We are pleased that more people are taking the incredibly important step to plan for the future by making a will. We know that the pandemic has made this process more difficult, which is why we are changing law to ensure that wills witnessed via video technology are legally recognised.

'Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable.’

Law Society president Simon Davis welcomed the measure: ‘The government’s decision to allow wills to be witnessed remotely for the next two years will help alleviate the difficulties that some members of the public have encountered when making wills during the pandemic. The Law Society is glad to see that guidance has been issued to minimise fraud and abuse. We look forward to working with government to ensure the reform is robust and successful.’

The Law Society added it was pleased to see that the changes are only intended to remain in place for two years. 'Although the government’s decision to allow remote witnessing will simplify will making for some during the pandemic and guidance has been issued to minimise fraud and abuse, the government needs to ensure the legislation is properly drafted to minimise unintended consequences and ensure validity.'

Solicitors have warned that the new legislation could cause a spike in probate litigation, however. Charles Hutton, partner at international firm Charles Russell Speechlys said: ‘It is welcome news that the government has relaxed the rules about the witnessing of wills, bringing England in line with many other countries.

‘However, concerns remain that this process will be open to abuse. How are the witnesses to know that, just out of camera shot, there is not someone putting pressure on the testator to sign? Admittedly, the current system is not perfect, but we may see a spike of undue influence cases following the deaths of those who have signed their wills in this way.’

 

*The Law Society is keeping the coronavirus situation under review and monitoring the advice it receives from the Foreign & Commonwealth Office and Public Health England.

Please see the Gazette’s dedicated coronavirus page here >>