It has been announced that witnessing of Wills via video link will continue to be permitted until 31 January 2024, an extension to the measures introduced at the start of the COVID-19 pandemic. The Ministry of Justice has said the extension will give vulnerable clients ‘peace of mind’ that their Wills will be validly executed and reassure those who will need to use the provision to ensure their wishes are legally recognised.
Despite the change in the law at the start of the pandemic, only 14% of legal professionals used remote witnessing during lockdown as per research carried about by the Law Society. 73% of respondents to the survey said they would not use remote witnessing due to an increase risk of future claims, undue influence and the need to adequately assess someone’s capacity to make a Will.
The process of signing a Will validly has existed since the Wills Act 1837 with a requirement that the Will is in writing, signed by the testator (or at their direction) in the presence of two witnesses. The Wills Act has remained good law for almost 200 years and, as acknowledged by the Ministry of Justice, the use of video technology to remote witness a Will should remain a last resort. However, the Law Society has gone one step further in suggesting that the Wills Act should be reformed to give judges power to recognise the testator’s intentions, even where their Will may have not been witnessed. In the same way that remote witnessing has a number of problems (as set out above), the introduction of testamentary documents without witnesses opens the door wider to an increased risk, particularly of undue influence.
There are certainly interesting times ahead for the law on the witnessing of Wills and whilst the introduction of remote witnessing gave peace of mind to vulnerable clients isolating during the pandemic (and continues to do so until 2024), any further changes need to be considered very carefully in order to protect individuals, particularly those who are vulnerable.
