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Wills In The 21st Century - The Significance Of Virtual Witnessing

Rachel Mainwaring-Taylor, 24 August 2020

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The UK government now allows wills to be witnessed virtually - clearly a major benefit in an age of "lockdowns", and also driven by the digital revolution. How does this process work, and what sort of issues and potential pitfalls should advisors and clients be aware of?

Even without COVID-19, the digital revolution has changed how people conduct business, and that includes legal activitiy. Writing, signing and authorising wills is one such area. For high net worth clients whose affairs involve cross-border transactions, the need to adopt video and other channels is clear. Obviously, the pandemic has massively accelerated this trend.

Clearly, there are drawbacks and issues to consider when using such communication channels. And it may be that some wills that have been drawn up online might turn out to be flawed. What sort of checks should people adopt to reduce problems? To try and answer such questions is Rachel Mainwaring-Taylor, a partner at UK law firm Farrer & Co.

The editors are pleased to share these insights and invite readers to enter the conversation. The usual disclaimers apply for comments from outside contributors. Email tom.burroughes@wealthbriefing.com and jackie.bennion@clearviewpublishing.com

The recent UK government announcement that the law will be changed to allow wills to be witnessed virtually has been heralded as the most significant change in this area in almost 200 years. Since the Wills Act in 1837, containing what constitutes a valid English will, updates to legislation have be few and far between. The Wills Act 1963 ensured that wills validly made under foreign laws could be recognised in the UK, but did not change our own domestic rules. Following this, a Law Commission consultation on reforming the law on wills was undertaken in 2017, but has since stalled at the policy development stage while other projects have been prioritised.  

Problems raised by lockdown
The current law requires a testator, or someone authorised by them, to sign their will in the presence of two independent witnesses, each of whom must then sign in the testator’s presence. Although the witnesses do not have to sign in each other’s presence, in practice they usually do.

Different formalities are needed for other types of legal documents: for example, most contracts require only the signature of a party, whilst most deeds require a single witness. The heightened formalities for wills reflect the significance of the document and the potential risks of fraud. It is clearly important to be able to verify that the will was indeed signed by the testator, they knew what they were doing, and they intended to give effect to the will by signing it.

During lockdown, social distancing rules have naturally led to problems, but the most difficult situations have arisen where a seriously ill individual wanted to make a will belatedly. With visits to hospitals and care homes prohibited and staff in many of these institutions not allowed to witness wills, it was difficult, if not impossible, to arrange valid execution.  

That said, some creative thinking and consideration of individual circumstances has led to solutions in many cases, be they witnessing through windows of homes or cars, or outdoors in gardens or parks, all while observing social distancing rules and additional precautions such as masks, gloves and a different pen for each individual.  

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