Ministry of Justice extends virtual Will witnessing legislation

The legislation, which was first passed in 2020, that allows for Wills to be witnessed via virtual means in England and Wales due to the COVID-19 pandemic has been extended until January 2024. Though the amendment was originally due to end 31 January 2022, the Ministry of Justice (MoJ) has deemed it necessary to remain in place, as many continue to isolate.

This adjustment to the Wills Act 1837 has permitted for Wills to be witnessed via video links such as Zoom or Skype, benefiting those who are forced to isolate due to COVID-19 or any other vulnerabilities during this unprecedented time period. However, it is encouraged that video witnessing is only used as a last resort.

The MoJ has advised that this extension is due to end on 31 January 2024, although the Law Commission will consider whether to make more permanent changes in the meantime.

Does this affect the Will making process?

Although the process remains much the same, there are some adjustments. Two witnesses are still legally required but they are now able to witness the Will virtually; the Will must be taken to each witness’ location and signed physically, with the Testator having a clear view of the process via video link. Ideally, this should happen within 24 hours of the Testator signing their Will within view of the witnesses on a video call.

Are there risks involved with video Will witnessing?

Although witnessing Wills online offers a more accessible way to complete Wills as the pandemic continues, there are downsides to the process. Virtual witnessing could increase the chances of Wills being deemed invalid for reasons such as:

Undue influence

Professionals have raised concerns that without the practitioner being physically present as the Testator and/or witnesses sign the Will, it may be more difficult to tell if fraud or undue influence is taking place. This uncertainty may give rise to claims of invalid Wills and lead to disputes when the Testator passes away. To read our blog on the common causes for inheritance disputes, click here.

Getting lost in transit/delays

Due to the Will needing to be transported to more than one location for each witness to sign, there is an increased risk of the Will getting lost in transit or the process being delayed because of issues with travelling to separate locations.

Misinterpretation

Despite technology being as advanced as it is, there is still the potential for issues when using video conferencing tools such as Skype and Zoom. Problems with connection, sound, and video could cause a Will’s witnessing process to become delayed or invalidated.

However, with due diligence and extra care, video witnessing can be used successfully. For the MoJ’s official guidance on creating Wills using video witnessing, click here.

Industry views

Opinions on the matter of online Will witnessing are varied. Research undertaken by the Law Society shows that:

• 14% of legal practitioners involved in the making and witnessing of Wills since the online method was first legalised in September 2020 have used virtual means for Will witnessing
• 78% of those who have used video witnessing have reported a positive experience
• 58% noted they would continue to use remote witnessing if its legalisation was made permanent
• 7% were unsure if they would continue to use it 
• 35% said they would not continue to use it

On the topic of the extension, President of the Law Society of England and Wales, I. Stephanie Boyce, commented: 

Those who have used video witnessing have told the Law Society that it has been a useful option to have, to help vulnerable people set their affairs in order when making a Will in the physical presence of witnesses is not possible.

The Law Society continues to take the view that in the longer term the most effective reform of the law would be to give judges powers to decide on whether Wills are valid in individual cases. They could then recognise the deceased’s intentions even where they have a Will which may not have been witnessed in line with the Wills Act, so their estate is inherited as they intended.

We look forward to the forthcoming Law Commission report on Wills reform which we hope will expand on this and other issues to improve Will making in England and Wales.

Paul Winterflood is Managing Director & Estate Planner of Kingsman Associates, a partner of Kings Court Trust. He shared his thoughts with us:

Kingsman Associates do not use video Will witnessing, as our business-as-usual approach means we adhere to the code of practice under the Institute of Professional Willwriters with regards to overseeing the attestation.

 We therefore still like to meet clients face to face to oversee their Will signing. However, where the legislation has assisted us is when we have had clients who are anxious and isolating due to the pandemic and in some instances we have conducted a few virtual signings. In these circumstances we have reconstructed the attestation clause to reflect this.

Saying that, we have recommended to those clients that 12 months from the virtual signing, if circumstances change, we will have a face to face meeting to sign their documentation.

Charlotte Toogood, Kings Court Trust’s Legal Services Director, said:

The extension of remote witnessing of Wills will be beneficial to the industry as it removes the need for face-to-face meetings. Whilst research suggests that Will writers are trying where possible to continue with face-to-face witnessing, having another option is extremely useful and hopefully means that those individuals who would not otherwise make a Will are still able to.

Kings Court Trust will continue to provide necessary updates should there be any further developments on this topic.