The Lord Chancellor, Robert Buckland QC recently announced a significant change to the way Wills can be witnessed, allowing, for the first time, for it to be via online live video. This is a substantial change to laws that were written in the first half of the 19th Century.
The Law Society provides its support for this change.
It seems that the law will come into force in September 2020, however, according to GOV.UK, video (or remote) witnessing is already accepted, which I can only assume is because, whilst the law is not in place yet, when it does, it’s expected to be backdated to 31st January 2020, the date of the first recorded COVID-19 case. It is probably safe to assume such Wills can be treated as valid.
The law will be in place to cover a two-year period, ending on 31st January 2022. It will then be a question of whether this change is made permanent or is to be seen as a temporary emergency measure to provide a simplified and accessible way to have your Will made in the time of restricted movement and health concerns.
The change is not universally welcomed, despite the Law Society’s support. Some practitioners have concerns that this relaxation could result in more disputes about validity and undue influence. I see this as welcome modernisation of an archaic system; at a time when so many of us do everything online and rarely ‘sign’ documents, when we can buy property, make investments and give away assets without having to lift a pen – there is a question over why it required a global pandemic for changes to be brought in.
Whilst I see this as a positive development, I should put this within the context of the Will having been professionally drafted. Without that safeguard, I believe it is correct to have concerns about Wills going missing, being fraudulently amended and the testator being unduly influenced.
Although it is not the witness’s job to confirm the testator knew what they were doing or that there was no one else in the room, it is very hard to know who else is in the room when someone is on a video call. For this reason there has to be an acknowledgment that undue influence could be being exerted upon the testator, unknown to the witnesses.
Provided the Will is professionally drafted this change offers Will drafters the opportunity to ‘see’ clients from further afield – to offer their expertise to people who otherwise would not have used anything but a local professional. I can see a time when we send the Will to the client, video call the client and witness them sign it. They then send it back to us and we do the same. As the drafting solicitor, we can check the Will corresponds with the one we drafted and can even discuss the client’s instructions again. This means the client does not have to even set foot in our office but we can be confident that the client’s intentions have been correctly recorded in their Will. This makes obtaining a professionally drafted Will far more accessible to a far larger population – which cannot be a bad thing.
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