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5 February 2024 | Comment | Article by Roman Kubiak TEP

Government ends remote witnessing of Wills

The Government has confirmed that it will not renew the temporary legislation that allowed wills to be witnessed remotely via video during the Covid-19 pandemic. The measure, which was introduced in September 2020 and backdated to 31 January 2020, expired on 31 January 2024.

The Parliamentary Under-Secretary of State for Justice, Mike Freer, announced the decision in the House of Commons on Thursday 1st February, saying that the special circumstances that justified the amendment to the Wills Act 1837 no longer apply. He said that the legislation was a response to the practical difficulties of making wills in person while the country was under lockdown and social distancing rules, and that the Government always advised that video-witnessing should be used as a last resort.

Given lockdown restrictions and social distancing, the strict legal formalities on signing a will, broadly meaning being physically present with two witnesses who could watch you sign your will and add their signatures to it, proved very difficult.  This led to some unusual scenarios, such as wills being witnessed through windows, across gardens, or on car bonnets, as reported by the media.

The amendment, pithily named the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952 essentially broadened the definition of “presence” to include not just physical presence but also presence via video-link.

While the original amendment was due to end on 31 January 2022, it was extended for another two years in February 2022, amid concerns about new variants of the virus and the possibility of further restrictions. However, surveys suggest that the uptake of video-witnessing was low, as most people preferred to follow the traditional method of in-person witnessing, or to wait until the restrictions were eased.

The Government’s decision not to extend the amendment further comes as the Law Commission is conducting a review of the law of wills, including considerations about the use of technology to help achieve its aim of encouraging more people to make wills. This may lead to more permanent and comprehensive changes to the way wills are made and witnessed. Along with considering issues such as electronic wills, the consultation looked at issues around mental capacity, undue influence, so-called “predatory marriages” and proposing reforms that would modernise and simplify the law.

While many in the legal profession welcome the prospect of modernisation, there are also concerns about the potential risks and challenges that new technologies may pose, especially for vulnerable clients.

Roman Kubiak, Partner and Head of Private Wealth Disputes comments:

“The law regarding wills has faced few updates since the enactment of the 1837 Wills Act. While other areas of law have embraced technological advances, there remains a reluctance with wills, with many understandably preferring the tradition and formality of signing a physical will

While it remains to be seen what, if any, proposals will be made, one obvious option is to adopt Qualified Electronic Signatures or ‘QES’ for short. A QES currently offers one of the highest levels of security available through face-to-face biometric ID verification and is endorsed by the Industry Working Group on Electronic Execution of Documents.

It also doesn’t require witnessing which some might say, while potentially decreasing the risk of forgery and fraud potentially increases the risk of undue influence. However, while the original policy reason for witnessing may have been to protect from forgery and undue influence, in my experience many people now use witnessing as a box-ticking exercise and so the original policy reason seems to have been eroded in place of a process.

Looking further ahead, is the possibility of wills being stored on the blockchain and incorporating technology to provide for third-party certification for instance to deal with concerns over capacity.

The fact is that technology may be better placed to deal with these issues than paper and pen ever were. Likewise, it can facilitate a clear electronic record and even encourage or promote a single, central register of wills.

While there are risks with technology, and appropriate safeguards must be put in place, shouldn’t the question be whether electronic wills provide better protection than the current system?”

For more information on the topics discussed in this article, contact our will writing solicitors today.

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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