Video witnessing of wills to be legalised during pandemic

The government’s decision ensures that any such wills will be legally recognised, provided the quality of the recording is good enough to see and hear clearly what is going on.

The government has agreed that the online witnessing of wills using apps such as Zoom and WhatsApp is to be made legal during the coronavirus pandemic.

The law as it stands says a will must be made in the presence of at least two witnesses, but social distancing rules during the pandemic have made it very difficult for those self-isolating or shielding to have anyone physically present.

Video link witnessing has been used as an alternative, but until now there has been no certainty that wills witnessed in this way would be considered legal.

The government’s decision ensures that any such wills will be legally recognised, provided the quality of the recording is good enough to see and hear clearly what is going on.

The new rules will pass into law in September, and will be backdated to 31 January 2020. They will remain in place until at least 31 January 2022, after which time wills will revert to face-to-face witnessing.

Emily Deane, technical counsel at the Society of Trust and Estate Practitioners (STEP), welcomes the government’s move: “We are delighted that the Government has responded to the industry’s calls to allow will witnessing over video conference. By removing the need for any physical witnesses, wills can continue to be drawn up efficiently, effectively and safely by those isolating.”

She is particularly pleased that the change of law will be backdated to the start of the pandemic, adding that it “will provide reassurance to anyone who has had no choice but to execute a will in this manner prior to this legislation being enacted”.

The move has also gone down well with law firms, who have had to find ways for clients to make their wills during recent months.

Amanda Noyce, partner in the contested wills, trusts and inheritance disputes team at Royds Withy King ­– whose clients have had wills witnessed via WhatsApp – welcomes the announcement as “a vital solution for families, and one which we have provided during lockdown to our clients where necessary”. 

Noyce adds: “There has been a sharp increase in instructions for wills since the coronavirus crisis, with people wanting to take steps to put their affairs in order, as the risk played on everyone’s mind.”

She gives the example of a client who had his will witnessed online. “In the early days of lockdown, we acted for a very ill individual with Covid-19, taking instructions from him via a WhatsApp video call. Using the video facility, we were able to check that he was alone in the room to ensure he was not being coerced. We then recorded his wishes.

“A draft will was emailed to him. In a second video call to execute the will, the client instructed the solicitor to sign his will on his behalf, whilst the client watched on the video. Then the solicitor and his wife signed the will as witnesses. 

“We had to warn the client that this was the best that could be done in the circumstances and that the will might well be formally invalid: a test case would be required to determine whether the will was in fact valid.

“In our view it was arguable that the will did satisfy the requirements of the Wills Act, since the will was signed and witnessed in the line of sight of the client – albeit that the line of sight was via video.

“To be sure, however, we advised that the will should be re-executed in conventional fashion should the client recover. In fact, happily in that case the client did recover and so was able to re-execute his will - although now the new law would assist in any event. 

“The introduction of a retrospective law will reassure thousands of people who might be concerned that wills executed during lockdown over a video call would have no legal force.”