The Ministry of Justice announced at the end of July that a statutory instrument allowing wills to be witnessed remotely in England and Wales will be laid in September.
The new rules – which will be backdated to 31 January 2020 – will allow testators’ signatures to be witnessed using video conferencing software, such as Zoom, Facetime and Skype.
The Lord Chancellor, Robert Buckland QC, said: ‘We are pleased that more people are taking the incredibly important step to plan for the future by making a will. We know that the pandemic has made this process more difficult, which is why we are changing law to ensure that wills witnessed via video technology are legally recognised.
‘Our measures will give peace of mind to many that their last wishes can still be recorded during this challenging time, while continuing to protect the elderly and vulnerable.’
In a previous article posted on LinkedIn in April 2020, I asked whether – in the light of the Covid 19 lockdown – a deed could be signed and witnessed entirely electronically.
Although the current law was under review, for a deed to be witnessed, the witness had to be physically present, even where both the person executing the deed and the witness are executing or attesting the document using an electronic signature.
However, the position regarding deeds remains unchanged.
The latest Law Society guidance (last updated in mid-June) in response to the pandemic is that:
- Even when executing a deed by electronic means, the witness must be physically present when a deed is executed by, or on behalf of, the maker.
- It is possible to demonstrate physical presence while also maintaining social distancing with appropriate safeguards, although there are practical challenges. When operating at the extremities of what may reasonably be considered to constitute presence, practitioners should collect clear evidence of presence, such as a video recording (subject to getting appropriate data protection rights consents).
It remains to be seen whether, in response to the pandemic, the law will be altered to also allow the witnessing of deeds using video conferencing software.
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