On 1 February 2024, the Justice Department announced that it was not extending pandemic-era temporary legislation (which took effect from 31 January 2020) enabling the signing of wills to be witnessed using video conferencing technology. This means that this legislation ceased to apply at midnight on 31 January 2024.
The legislation in question amended the Wills Act 1837, which otherwise requires that a Will be signed in front of two witnesses, who must be physically present to witness the signing of the will, and then must sign in the physical presence of each other and the testator. Under the temporary measures, the two witnesses and the testator did not need to be in each other’s physical presence, but instead the Will could be signed using live video conferencing technology between the three parties.
It was originally brought into force due to the coronavirus pandemic, and was extended for a further two years in February 2022 only because the government feared that further coronavirus strains would emerge, causing further lockdowns.
Though the concept of video-witnessing may appear forward-thinking and innovative, in practice the process had notable shortcomings, which many practitioners might well now be pleased to rid themselves of.
For example, the government guidance accompanying the legislation recommended that recordings be kept of the video calls in question, which would presumably lead to a requirement for potentially large amounts of data to be stored by any law firms providing this service for their Will clients, and could also presumably lead to problems if such data was lost and the Will later challenged. in addition, it was recommended that the Will, once signed by the testator, be physically delivered to each of the respective witnesses for signing within 24 hours. Even if this were possible, this could still mean a significant delay if the witnesses themselves were in different physical locations and two deliveries were needed. The obvious problem with this is that the testator could die before the witnesses themselves had signed, leaving the Will invalid (as counterpart copies were not permitted).
Another issue was that when the witnesses were ready to sign, that triggered a further video call between the three parties (or even two further calls if the witnesses were each in different physical locations from each other) to witness the signings, all of which would need to be recorded, causing yet more data storage and potentially yet more complication.
All of the above also does not take into account the possibility of fraud or foul play or undue influence, nor does it take into account the possible breakdown in video feed at a crucial moment, for example, during the moment of signing.
The guidance to the temporary measures always made clear that this process was to be used only where the conventional method of signing could not be used, and it is not difficult to see why given the complications discussed above.
As a result, it is unlikely that many practitioners will be sorry to see the expiry of these temporary measures. Moreover, it seems clear that they did not represent the reform of the law surrounding Wills execution that many people would like to see.
However, even though the measures have now expired, it should always be borne in mind when dealing with a Will signed between 31 January 2020 and 31 January 2024 that that Will could have been signed using video conferencing technology.
For advice regarding Wills and their execution, please contact our Wills, Trusts & Probate Team for more information.
