The times they are a-changin’. Devon Wills Solicitor, Emma Napper, looks at the new rules for witnessing a Will remotely
The rules on witnessing a Will have been around a very long time; 183 years to be precise. In recent times there has been a growing clamour to bring the rules up to date with the digital times in which we live. However, those demands have been resisted. Until now. The impact of coronavirus on our lives has been far-reaching and its presence is now being felt in the arcane and slow moving world of Wills.
While certain areas of the law have kept pace with technological change, Wills have remained stubbornly traditional. So while a deed can be executed electronically, Wills have had to be signed and witnessed in person, just as they were in Victorian times.
But a recent announcement by the Ministry of Justice has changed all that. In a revolutionary step a temporary statutory instrument will be laid in September bringing in new rules for witnessing a Will remotely. What’s more, the new rules are to be backdated to 31 January 2020.
Under the Wills Act 1837, a valid Will needed two witnesses both of whom had to be in the physical presence of the testator (the person making the Will). Under the new rules the testator’s signature can be witnessed remotely using video conferencing software. The testator simply signs their Will and then posts it to their two chosen witnesses. Those witnesses then sign the Will during a web conference, via platforms such as Facetime, Zoom and Skype.
Electronic signatures will not be valid.
We at Slee Blackwell welcome the change. It is important for law to move with the times and adapt to evolving technology. However, it is important that we remain vigilant as the new rules may be vulnerable to abuse. How can we rule out the potential for fraud, or undue influence for example? Although these are risks that already exist under the current system, most Wills that are prepared by solicitors tend to be witnessed in the solicitor’s office. The solicitor can therefore be called upon t0 provide evidence that the witnessing process was legal and transparent. Where the Will is witnessed remotely this will no longer be possible and uncertainty may arise as a result.
We also need to bear in mind that although the rules are embracing new technology, it will not speed matters up. Indeed, if anything they have the potential for creating delay; and when it comes to Wills delay can be fatal. Imagine the consequences if a testator chooses to have their Will witnessed remotely and they then die before the process has taken place.
We have a team of lawyers who deal with disputed Wills and having spoken to my colleagues who deal with those cases their feeling is that the number of Will challenges is likely to rise as a result of rules allowing witnessing a Will remotely.
Because the new rules are temporary they will only remain in place until 31 January 2022. The position will then return to how it was previously, with witnesses being required to be physically present. However, by that time remote witnessing will have had an extensive test drive. Important lessons will have been learned that may pave the way to a permanent change in the way Wills are dealt with.
Now that the genie is out of the bottle, we believe it will be difficult to put it back.