Legal
UK Ends Remote Witnessing Of Wills â The Implications
This commentary, from the private wealth arm of law firm Hugh James, examines moves by the UK government to end the ability to witness wills remotely â a measure temporarily enacted to deal with disruption to normal life from lockdowns.
The following article comes from Hugh James Private Wealth, part of law firm Hugh James. It examines the UK governmentâs ending of the ability â instituted during the pandemic â to witness wills remotely. With normality returning, the physical witnessing of wills returns. A question arises as to whether this causes any concerns.
The editors are pleased to share these insights; the usual editorial disclaimers apply. Email tom.burroughes@wealthbriefing.com if you have comments or wish to respond.
The government has confirmed that it will not renew the temporary legislation that allowed wills to be witnessed remotely via video during the COVID-19 pandemic. The measure, which was introduced in September 2020 and backdated to 31 January 2020, expired on 31 January 2024.
The Parliamentary Under-Secretary of State for Justice, Mike Freer, announced the decision in the House of Commons on Thursday 1 February, saying that the special circumstances that justified the amendment to the Wills Act 1837 no longer apply. He said that the legislation was a response to the practical difficulties of making wills in person while the country was under lockdown and social distancing rules, and that the Government always advised that video-witnessing should be used as a last resort.
Given lockdown restrictions and social distancing, the strict legal formalities on signing a will, broadly meaning being physically present with two witnesses who could watch you sign your will and add their signatures to it, proved very difficult. This led to some unusual scenarios, such as wills being witnessed through windows, across gardens, or on car bonnets, as reported by the media.
The amendment, pithily named the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952 essentially broadened the definition of âpresenceâ to include not just physical presence but also presence via video-link.
While the original amendment was due to end on 31 January 2022, it was extended for another two years in February 2022, amid concerns about new variants of the virus and the possibility of further restrictions. However, surveys suggest that the uptake of video-witnessing was low, as most people preferred to follow the traditional method of in-person witnessing, or to wait until the restrictions were eased.
The governmentâs decision not to extend the amendment further comes as the Law Commission is conducting a review of the law of wills, including considerations about the use of technology to help achieve its aim of encouraging more people to make wills. This may lead to more permanent and comprehensive changes to the way wills are made and witnessed. Along with considering issues such as electronic wills, the consultation looked at issues around mental capacity, undue influence, so-called âpredatory marriagesâ and proposing reforms that would modernise and simplify the law.
While many in the legal profession welcome the prospect of
modernisation, there are also concerns about the potential risks
and challenges that new technologies may pose, especially for
vulnerable clients.
Roman Kubiak, partner and head of private wealth disputes,
said: âThe law regarding wills has faced few updates since
the enactment of the 1837 Wills Act. While other areas of law
have embraced technological advances, there remains a reluctance
with wills, with many understandably preferring the tradition and
formality of signing a physical will.
âWhile it remains to be seen what, if any, proposals will be made, one obvious option is to adopt Qualified Electronic Signatures or âQESâ for short. A QES currently offers one of the highest levels of security available through face-to-face biometric ID verification and is endorsed by the Industry Working Group on Electronic Execution of Documents.
âIt also doesnât require witnessing which some might say, while potentially decreasing the risk of forgery and fraud potentially increases the risk of undue influence. However, while the original policy reason for witnessing may have been to protect from forgery and undue influence, in my experience many people now use witnessing as a box-ticking exercise and so the original policy reason seems to have been eroded in place of a process.
"Looking further ahead, is the possibility of wills being stored on the blockchain and incorporating technology to provide for third-party certification for instance to deal with concerns over capacity.
âThe fact is that technology may be better placed to deal with these issues than paper and pen ever were. Likewise, it can facilitate a clear electronic record and even encourage or promote a single, central register of wills.
âWhile there are risks with technology, and appropriate safeguards must be put in place, shouldnât the question be whether electronic wills provide better protection than the current system?,â he concluded.