Wills Execution with Remote Witnessing

The temporary relaxation on how Wills need to be witnessed ends on 31 January, unless extended by the Government. Research shows that the measure has not been very popular.

The legislation temporarily allowing Wills in England and Wales to be witnessed by video link, came into retrospective effect on 28 September 2020 and applies to Wills made from 31 January 2020 until 31 January 2022.

The process is, to put it mildly, cumbersome. Whilst it allows for the witnesses to be present by means of videoconference or other visual transmission, usually Skype or Zoom (rather than being physically present when the testator signs the Will) it requires the original Will to be posted (or otherwise delivered) to each witness so they could attest it in wet ink (and until then the Will was not valid).

It has been reported that this requirement has led to problems with some estates, and of course there have been problems with some temperamental internet connection failures.

From the beginning there was some scepticism about the new process, indeed the Law Society itself was so concerned that it recommended that practitioners treat Wills witnessed remotely as ‘holding Wills’ and consider re-signing the Will once restrictions are lifted sufficiently to allow this to happen.

In November 2021, the Law Society conducted a survey to assess whether solicitors used remote witnessing much or at all and whether they wanted to continue using it after the end of lockdowns. The results make interesting reading.

Of the 772 Will-writing professionals who responded to the survey questions, only 14% used remote witnessing during the COVID-19 lockdowns. Most of these (78%) were positive or neutral about it and more than half (58%) of these said they would use remote witnessing if it continued to be an option after the pandemic. However, 35% said they would not continue to use it.

About three-quarters (73%) of all respondents said they would not use it after the pandemic ended, citing worries about the heightened risk of undue influence and of future claims against the estates. Further, respondents said that it was more difficult to assess their client's capacity to make decisions when the process was conducted remotely. Some also said it was more time-consuming than physical witnessing.

As for our Will writing business, 100% of our Wills were witnessed in person. Even the most nervous have still been able to find a willing neighbour to witness a signature over a car bonnet.

The Ministry of Justice has not yet made any announcement regarding a possible extension of the 31 January 2022 deadline, but it is of course possible that they will.

After all, we are still far from being allowed to mix freely, and, so, whilst the current remote witnessing process has clearly not been adopted with relish, there is still a need for remote witnessing to be allowed.

Meanwhile, we are still waiting for the Law Commission to issue its report on the much needed Wills reform, now expected in the next two years.