A CHANGE TO THE LAW ON WILLS

Solicitor Rachael McCarthy-Jones considers the developments to the law on wills.

As a result of the Covid-19 pandemic there has been an increase in the number of people putting wills in place and reviewing and updating existing wills.

However complying with will writing formalities, in particular, the need to sign a will in the presence of two independent witnesses has proved challenging, especially given the government imposed self-isolation and social distance rules.

The government has recognised these difficulties and as such, the law in England and Wales is to be amended in September 2020 to allow the remote electronic witnessing of wills.

This amendment will be backdated to 31 January 2020, meaning that wills witnessed remotely early on in the pandemic should be valid.  This new law will remain in place until 31st January 2022, or as long as it is deemed necessary.  However the government can reduce this time frame.

Remote witnessing:

  • The need for two independent witnesses to the will is still a requirement.  Hence the camera must be positioned to ensure that the witnesses have a clear view of the testator writing their signature. The witnesses should confirm that they can see and hear the testator.
  • If the testator is not known to the witnesses, proof of identity (for example passport or driving licence) should be shown to the camera
  • Pre-recorded videos of the testator signing the will are not permitted.  The witnesses must see the testator sign in real time.
  • Once the testator has signed the will (signatures must be ‘wet’ and remote electronic signing will not be permitted), the document should be sent to each witness (as soon as possible after the testator has signed).  The witnesses should then sign the will via video link in front of each other and the testator.
  • Government guidance suggests that a recording of the signing/witnessing process should be he made and retained on the client file.

It is important to note that that the government has emphasised that the remote witnessing of wills should only be used as a last resort and the traditional means of physically witnessing a will should be the preferred option provided it is safe to do so.

If you need to make or update a will, whether in person or via an online or telephone meeting contact our Lifetime Planning Team on 01443 450561, or at wills@jnplegal.org for a no obligation discussion.