Parliament reacted slowly to the emergence of Covid-19 in this country when it came to will-writing. Despite the Government locking the country down in March 2020, it took Parliament until July 2020 to temporarily amend Section 9 of the Wills Act 1837 to allow for remote witnessing of a will.
Section 9 of the Wills Act 1837 sets out the requirements for a valid will. One of those requirements is that the execution of the will by the testator must be witnessed by “two or more witnesses present at the same time”.
Parliament amended this long-standing law to allow witnesses to witness the execution of the will by remote means (i.e., by a video link).
I attended a couple of webinars in the early months to understand how remote witnessing might operate. The process seemed difficult to navigate; errors could easily creep in. It just felt a bit like the blind leading the blind.
Having spoken with a number of non-contentious practitioners over the past 18 months, it appears that not many really engaged with it. The unanimous feeling was that new instructions to make a will in this way would be rejected due to the fear of the will’s validity being challenged, or simply getting it wrong.
The temporary legislative amendment is due to end next month (in January 2022).
The Law Society of England and Wales have therefore been conducting research into its continuation. The results of the research were published. Only 14% of solicitors in the non-contentious probate industry confirmed that they undertook remote will witnessing during the various lockdown periods.
It remains to be seen whether the Ministry of Justice will push for the legislation to continue. In my opinion, the practice ought to end here. Section 9 of the Wills Act 1837 was deliberately designed to create certainty in a process. The amendment just opens the door to risk, complaints and claims by disgruntled family members.
With a remotely witnessed will, there is an increased risk of:
- Undue influence by beneficiaries against the testator; and
- Unreliable capacity assessments.
The pre-pandemic practice is best left unchanged.