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Thursday 10th September 2020 Natasha Lawson 

Remote witnessing of wills

What is the current law?

In order to make a valid will in England and Wales, a testator must comply with the formalities which are set out in section 9 Wills Act 1837. Most notably, a testator is required to sign his will “in the presence of two or more witnesses present at the same time.”

This requirement was introduced as a safeguarding mechanism to protect Testators against undue influence and fraud. However, this has resulted in making the process of obtaining a valid will extremely difficult during lockdown, especially for those who are self-isolating and “shielding” in accordance with Government guidance.

What is the problem?

As a result of the difficulties associated with meeting with two independent witnesses face to face, most testators have turned to video link software such as Zoom or FaceTime to execute their wills. It was initially unclear as to whether execution of a will in this way would be valid as it is not technically “in the presence of two or more witnesses.”

What is the new legislation?

A Statutory Instrument has been laid before Parliament which amends the current law and legalises video-witnessing of wills. This legislation retrospectively backdates to 31 January 2020, as this corresponds with the date of the first confirmed coronavirus case in the U.K. It is understood that this new change will remain in place until 31 January 2022 unless it in no longer deemed necessary. To view the Statutory Instrument, please click here: https://www.legislation.gov.uk/uksi/2020/952/made

Is this a welcome change?

As a large percentage of the population has decided to plan ahead and prioritise making a will in these uncertain times, this new legislation provides reassurance that those wills can be validly executed in a relatively simple way and alleviates the difficulties involved with the process.

This is a welcome change which will continue to encourage the public to get their affairs in order whilst giving them peace of mind that they can maintain social distancing and still produce a valid will.

If you have any questions about this article please contact Natasha Lawson by email on nlawson@jpclaw.co.uk or by telephone: 0207 644 6097 or connect with her on LinkedIn, or Yashmin Mistry, Partner by email on ymistry@jpclaw.co.uk or telephone on 0207 644 7294 or connect with her on LinkedIn.

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