Witnessing wills: an update


28 July 2020

In our legal update Coronavirus restrictions and wills, published on 24 March - the day on which the lockdown provisions came into force, we noted that dealing with the execution of wills could be a difficult issue while the restrictions on movement were in force and we mentioned that the Law Society and other professional bodies were in discussions with the government about how to deal with this issue.

It has certainly taken a while but the Ministry of Justice (MoJ) has finally announced that new legislation, which will enable individuals to video-witness the execution of their wills if they are unable to observe the normal formalities, will be brought forward in September and that it will apply retrospectively (from 31 January 2020 onwards). 

While the introduction of this measure is welcome and the option to use video- witnessing for the execution of a will could be extremely useful for some individuals, there are a number of points to bear in mind:

  • the new rules will apply only in England and Wales
  • the MoJ has published guidance but the draft legislation itself has not yet been published, so, we cannot, at this point in time, state categorically what will be required to comply with the new rules
  • the new rules will not apply where the grant of probate has been issued or where the application for the grant has been submitted
  • it is a temporary measure: the new rules will apply to wills made up to two years from the date the legislation is due to come into force (so, until 31 January 2022)
  • there is always the risk that the legislation is not, in fact, implemented for whatever reason – another election, perhaps?

On the basis that there is, as yet, no track record on the method of witnessing wills via video link and because of the increased risk of challenge, the potential for abuse, issues with confidentiality, the uncertainty on the rules and the technical and logistical difficulties with video witnessing, our advice to client is that witnessing wills via a video link should only be used if the conventional method is going to prove impossible.

Over the last several months, we have advised our clients on how to execute wills, while complying with the restrictions on movement/social distancing, and in the majority of cases, it has been manageable. We will continue to monitor the situation and we will advise our clients on the most appropriate method of dealing with the execution of their wills, with reference to each client’s particular circumstances. If you have any questions about the execution of your will, please contact us.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2020.