A will must be made ‘in the presence of’ at least two witnesses in order to be valid, in England and Wales. During the pandemic, some people who were shielding or isolating had their wills witnesses remotely used video link software―raising questions about the legal validity.
However, the MoJ has announced that a statutory instrument will be laid in September and will have retrospective effect to 1 January 2020, amending the Wills Act 1837 to stipulate that ‘presence’ may be virtual or physical.
Nicholas Bevan, senior associate, Solicitors Title, who has previously written in NLJ that witnessing and executing wills online has always been legal therefore there was no need for a rule change, said: ‘The proposed legislation unblocks the logjam caused by the legal profession’s failure to apply the law.
‘Section 9 of the Wills Act 1837 does not insist on the physical “presence” of a testamentary witness, any more than it stipulates that “writing” must be handwriting or type.’ He pointed out that the government announcement expressly declares that ‘none of the existing relevant requirements are changed by the new law’.
Welcoming the announcement, Law Society president Simon Davis said: ‘Both probate professionals and the public will need greater clarity on when remote witnessing is appropriate and what to do in exceptional circumstances.’
Chartered Institute of Legal Executives (CILEx) CEO Linda Ford said practitioners had reported ‘significant difficulties with witnessing wills’ and emphasised that the legislation must ‘recognise the risks of duress, undue influence and fraud, and build safeguards into any such new regime.
‘Unfortunately, wills can bring out the worst in people and the retrospective nature of the change, whilst providing additional assurances for those who have already made their wills over the lockdown period, could make some cases particularly fraught.’
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