The government is to legalise the remote witnessing of wills for two years, backdating the change to 31 January this year to reassure those who have already done it during the pandemic.
But the Ministry of Justice (MoJ) has decided not to allow electronic signatures as part of the temporary legislation due to the risks of undue influence or fraud.
It will be introduced in September so that the requirement that a will is made “in the presence of” at least two witnesses will include those witnessing remotely, as long as the quality of the sound and video is sufficient to see and hear what is happening.
They will still need a clear line of sight as with conventional wills and cannot witness pre-recorded videos. Counterpart wills will not be allowed using this method.
The backdating – which is to the date of the first confirmed coronavirus case in the UK – does not apply where a grant of probate has already been issued in respect of the deceased person or the application is in the process of being administered.
The MoJ said change would remain in place until 31 January 2022, but this could be curtailed or extended if necessary. However, it stressed that using video technology should remain a last resort.
Guidance said that, if possible, the whole video-signing and witnessing process should be recorded and the recording retained to assist a court in the event of the will being challenged.
The MoJ suggested that the will-maker should hold the front page of the document up to the camera to show the witnesses, and then to turn to the page they will be signing and hold this up as well. The will-maker should ensure the witnesses can see them actually writing their signature.
If the witnesses do not know the person making the will they should ask for confirmation of identity.
The witnesses should then confirm that they can see, hear and understand their role, and the document should be taken for them to sign, ideally within 24 hours. The will-maker should be watching online in the same way – if the witnesses are not with each other, they should watch each other sign online.
The MoJ said professional bodies like the Law Society and Society of Trust and Estate Practitioners were expected to issue their own guidance.
It has decided not to allow electronic signatures “due to the risks of undue influence or fraud against the person making the will”; the Law Commission is working on the electronic execution of deeds that could enable electronic wills, the MoJ noted.
Lord Chancellor Robert Buckland said: “We know that the pandemic has made this process more difficult, which is why we are changing law to ensure that wills witnessed via video technology are legally recognised.
“Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable.”
Law Society president Simon Davis welcomed the change, adding: “The government needs to ensure the legislation is properly drafted to minimise unintended consequences and ensure validity.
“Both probate professionals and the public will need greater clarity on when remote witnessing is appropriate and what to do in exceptional circumstances – such as if the testator dies while the will is being sent to a witness’ address for them to sign…
Linda Ford, chief executive of the Chartered Institute of Legal Executives (CILEx), was similarly supportive, but said the MoJ needed to include safeguards against the risks of duress, undue influence and fraud.
“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.
“As the pandemic has accelerated the adoption of technology in the law, we urge the government to move swiftly and set up the promised industry working group that will consider the security and technology of electronic signatures, and witnessing them by video. We want the law to adapt and innovate, but it must do so in a safe and measured way.”
Both the Law Society and CILEx called for wider reform of the Wills Act 1837.
Jan Atkinson, head of private client at London law firm Osbornes, suggested that, with lockdown being eased and people getting used to wearing face masks, “this does seem to be a case of government shutting the stable door once the horse has bolted”.
She said: “My biggest concern is that without very clear guidance as to what is acceptable by way of remote witnessing of wills and to who that will apply, the floodgates could open for more wills and estates disputes over the coming years.”