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15th October 2020

Video witnessing of Wills now legal as a result of the coronavirus pandemic

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Video Witnessing of Wills is now (temporarily) legal as a result of the coronavirus pandemic, courtesy of a new statutory instrument introduced in September 2020.

The pandemic has prompted many people to execute new wills but satisfying the long standing requirements for valid execution mandated by the Wills Act of 1837 has proven very difficult for vulnerable individuals who are shielding or self- isolating. The need to sign the will in the presence of two witnesses whilst maintaining a safe distance has led to all sorts of novel (and less than ideal) solutions, including peering through windows and the passing of wills between gloved hands through letterboxes for signature.

More seriously, there have been reports of many people having their Wills witnessed via video-link, operating under the mistaken assumption that English Law allowed for video witnessing, as was already the case in the many foreign jurisdictions including Australia, several Canadian and US States and even Scotland and Jersey.

The new statutory instrument seeks to address this growing problem, by amending the Wills Act 1837 so that whilst a Will must still be executed in the “presence” of two witnesses, this presence can be virtual as well as physical. The key points to note are that witnessing must still occur in real time (not via a pre- recording), and that both the sound and quality of the video must be sufficient to see and hear what is happening. Fortunately, this relaxation of the rules will not only apply to Wills witnessed from September onwards, but will also have retrospective effect dating back 31 January 2020; the day of the first confirmed coronavirus case in the UK, rescuing those wills made post lockdown which would otherwise have been invalid. The relaxation of the rules is provisionally slated to remain in force until January 2022, however this period could either be shortened or extended depending upon how long the effects of the pandemic persist.

Going forward, the most prudent advice to clients will generally be to stick to the “tried and tested” traditional method of physical witnessing where at all possible, so long as it is safe to do so. The new statutory instrument however, does provide some much needed protection for those for whom this will not be possible.

For more information on any of the items raised in this article please contact Tiffany Benson by clicking here.