Remote witnessing of wills in England and Wales was made legal on September 28, 2020
All over the world, the Covid-19 pandemic has prompted many people to put in place a will, to ensure that their assets pass in accordance with their wishes in the event of their death. For a will to be legally binding in England and Wales, it must be executed following strict formalities set out in the Wills Act 1837. In particular, it requires the person making the will to sign it in the presence of two independent witnesses. In light of social distancing and self-isolation, complying with the strict formalities has proved to be a challenge for many people not only in England and Wales, but, globally as well.
When social distancing became a protective measure to prevent the spread of COVID-19, different countries responded by relaxing their will signing requirements – for example, in Ontario, Canada, on April 7, 2020, The Lieutenant Governor in Council made an Order under s. 7.0.2(4) of the Emergency Management and Civil Protection Act (the “EMCP Act“), to temporarily permit virtual execution of Wills and Powers of Attorney through audio-visual communication technology during the COVID-19 emergency. In England and Wales, the government only announced on July 25, 2020, its intentions to make changes to the Wills Act to legalize the remote witnessing of wills. The amendments came into effect on September 28, 2020.
The amendments include:
- where wills must be signed in the “presence” of two witnesses, their presence can be either physical or virtual. Where virtual witnessing is chosen, the type of video-conferencing or device used is irrelevant, as long as the person making the will and the two witnesses all have a clear line of sight of the act of signing the will;
- the witnesses must see the will being signed in real-time;
- If the witnesses do not know the person making the will, confirmation of their identity should be shown;
- The will-maker should hold up to the camera both the front and signature page of the will so that the witnesses can see the document being signed. The witnesses should also confirm that they can see and hear what is taking place and that they understand their role;
- Once the will-maker has signed the will, the document must be sent or taken to each of the witnesses for their signature, ideally within 24 hours. This should also take place via video link so that the will-maker can see both witnesses sign; and,
- The government suggests that a recording should be made and retained of the entire signing/witnessing process.
These measures will be retroactive to January 31, 2020, the date of the first confirmed coronavirus case in the UK, meaning any will witnessed by video technology from that date onward will be legally accepted. This change will remain in effect until January 31, 2022, or for as long as it is deemed necessary, after which, wills must return to being executed with witnesses who are physically present at the time of execution.
The government has emphasized that the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so.
Aside from the temporary amendment to the meaning of the word “presence” in the Wills Act, no other changes are intended to be made. In particular:
- all other existing formalities in the Wills Act shall remain in force, meaning that, for example, the two witnesses cannot be beneficiaries under the terms of the will;
- electronic signatures will not be permitted; and
- “counterpart” wills (i.e. when two copies of the will are printed and the will-maker signs one copy and the witnesses sign the other copy) are not to be allowed.
Simon Davis, President of the Law Society of England and Wales was quoted as saying, “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”.
Although these changes are welcomed, it may now time for Estate Law to catch up with modern technology and to embrace the introduction of electronic wills by placing proper safety measures in place that will address the concerns of the legal profession and the pitfalls in the current legislation as it stands.
 Wills Act 1837, https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9
 Supra note 2
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.