Covid-19 has brought so much global uncertainty across many industries thus far in 2020. The UK legal industry is no exception and has consequently been forced to make compromises and alternate arrangements throughout the year. One such alternative arrangement is the recent Statutory Instrument of allowing wills to be temporarily witnessed remotely as a solution for those shielding or isolating. This has been met with some concern and criticism from workers within the legal industry.
What is the current law surrounding will witnessing in England?
In England the Wills Act of 1837 requires two witnesses to be in the physical presence of the testator, in order to protect people against undue influence and fraud. From this month, however, wills witnessed via online technology such as Skype, Facetime and Zoom will be legal thanks to the major revamp of probate legislation during the Covid-19 global pandemic.
What is a Statutory Instrument?
A Statutory Instrument is a form of legislation which allows the provisions of an Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a new Act. They are also referred to as secondary, delegated or subordinate legislation.
How and when will the law change?
The case of a will being witnessed online remains a very last resort as a solution for people who are unable to leave their homes due to shielding or isolating. By September the new rules will allow testators’ signatures to be witnessed using video conferencing software, such as Zoom, Facetime and Skype. Once a will has been signed by the testator it can be posted to witnesses, who sign it themselves during live action web conferences. These new measures will be backdated to the 31st of January 2020 (the date of the first confirmed UK coronavirus case) and will remain in place until the 31st of January 2022, or as long as is necessary.
How has the legal community reacted?
There has been a mixed reaction from the legal community regarding this new development. The Law Society as a whole has welcomed the new legislation; Simon Davis, the Law Society President, stated: ‘The government’s decision to allow wills to be witnessed remotely for the next two years will help alleviate the difficulties that some members of the public have encountered when making wills during the pandemic. The Law Society is glad to see that guidance has been issued to minimise fraud and abuse. We look forward to working with government to ensure the reform is robust and successful.’
Despite this positivity, some concern has been expressed about the new process and the fact it could be easy to manipulate the circumstances. Charles Hutton of Charles Russell Speechlys said: ‘However, concerns remain that this process will be open to abuse. How are the witnesses to know that, just out of camera shot, there is not someone putting pressure on the testator to sign? Admittedly, the current system is not perfect, but we may see a spike of undue influence cases following the deaths of those who have signed their wills in this way.’
For now it is still advised by officials that as long as it is possible and safe to do so, it is best to have your will witnessing arranged in person.