Remote witnessing of wills – should it be the last resort?

With COVID-19 lockdown restrictions limiting human interaction, the witnessing of wills is another aspect of our lives that has had to adapt to the new normal brought about by the pandemic.

The remote witnessing of wills has become common as many people look to write wills to plan what happens after they’ve gone, but also adhere to government guidelines around social distancing, or protecting those who might be shielding.

The Government responded to this scenario by introducing new legislation to enable video-witnessed wills. It applies to wills made between 31 January 2020 and 31 January 2022, and means these important documents can be witnessed by video.

There are some important things to remember:

  • The new law will amend the Wills Act 1837 to stipulate that while wills must continue to be signed in the presence of two witnesses, this can be either physical or virtual.

  • Wills still need to be signed by two witnesses who are not named as beneficiaries. Electronic signatures are still not permitted.

  • The signed will should be posted to the witnesses within 24 hours via recorded delivery. The longer the delay, the greater the potential for any disputes about the will’s validity.

  • Any wills witnessed remotely should be recorded.

  • Any witnesses should be able to clearly see and hear what is being said so a stable internet connection is vital if this process is to work effectively.

  • Witnessing pre-recorded videos of the signature of the will is not allowed by this new legislation. This process must take place in real-time.

The Law Society has recommended that while this legislation certainly works to overcome the challenges caused by the COVID-19 lockdown measures and will cover wills witnessed until January 2022, this is a short-term solution and physical witnessing should take place when possible.

However, digital technology is changing every aspect of our lives meaning that Covid-19 may well have sped up any overhaul of the process. Rather than this being the last resort, if technology continues to pick up pace, then this could be the beginning of a new era of remote wills. But there are some caveats in place.

What risks does technology need to solve

  • Connection issues - the pandemic has really brought home the importance of investing in a secure broadband connection. As networks become stronger, then more faith will be invested in the validity of remote will signing.

  • Fraud concerns - with video calls, viewers can only see what’s happening within the video frame meaning witnesses could be accused of being influenced by whatever is taking place off camera. Utilising 360 camera technology could be one solution to this challenge.

  • Processing delays - as witnesses still need to be signed, then improvements need to be made around the safe transition of any legal documents. If these can be fixed and the validity of the supply of documentation sped up, then this could go some way to supporting the case for permanent remote witnessing.

While some legal bodies have suggested remote witnessing of wills should be a last resort, it makes sense for the sector to investigate what needs to change for this to be a permanent solution.

Despite the vaccine programme rolling out quickly, social distancing measures will still be in place for some time while those more vulnerable may not feel safe in physically meeting with others. With this in mind, COVID-19 may lead to remote witnessing being here to stay - as long as the technology supporting it can be put in place fast enough.