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Making Wills in England and Wales: the law is changed 3 months after Jersey to recognise Wills witnessed by video link as validly executed

Only two months ago, Rupert Ticehurst and Ed Powles explained the rules on how a will must be validly executed by a testator in the physical presence of two independent witnesses.  This was a follow up to an earlier MEET | THE | EXPERTS webinar, “Covid-19 - Wills in Isolation” which Rupert chaired, and during which Ed, Jessica Henson and Ruth Hughes shared their views on the subject. 

Since lockdown was imposed, the majority of private client lawyers and will writers concluded that a will witnessed via a live video link would not satisfy the strict provisions of the Wills Act 1837 (a view supported by the Solicitors Regulation Authority and the Law Society).  They focused instead on how close the witnesses had to be to comply with both the two metre rule and the case law which required “a clear line of sight” between all three individuals involved.  Indeed, private client lawyers spent more time scrutinising the eighteenth century case Casson v. Dade in those three months than they had in the previous 300 years.  In that case, a testatrix was held to have observed the witnesses attesting her signature to her will (which they had seen her execute in her attorney’s office) through the window of her carriage to which she had retired due to the heat.

It was therefore a surprise that on Saturday 25 July, the Ministry of Justice issued guidance to the effect that the Wills Act 1837 was to be amended with the effect that, during a temporary period, the “presence” of those making and witnessing wills includes a virtual presence, via video-link, as an alternative to physical presence.  Furthermore – surprisingly - the legislation will apply retrospectively to Wills made after 31 January 2020, the date of the first registered Covid-19 case in England and Wales (except in cases where a grant of probate has already been issued or the application is already in the process of being administered).  This has the potential to create some striking anomalies.

The new rules are not without risk – not least because of the obvious potential concerns regarding undue influence and fraud which have arguably been exacerbated during the pandemic.  From a practical perspective, neither electronic signatures nor counterpart execution pages are permitted and the witnesses must each, subsequently, sign the will they witnessed by video link with wet ink.  If the testator dies before both witnesses have applied their signatures, the Will is invalid.

Some have argued that a change to the legislation is not necessary and that the process carries risks.  While Society of Trusts and Estate Practitioners has welcomed the news, which will bring the law in England and Wales broadly in line with other jurisdictions which already permit video witnessing, we echo the government’s advice that where people can make in the conventional way they should continue to do so. 

The legislation will on its face apply to Wills made up to two years from when the legislation comes into force (i.e., until 31 January 2022).  This can be shortened or extended if it is considered necessary, in line with the approach adopted for other coronavirus legislative measures.   

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