Remote witnessing Wills – the stepping stone to reform or the backdrop for further disputes

Legislation has recently been introduced to allow Wills to be validly witnessed by video link rather than in person.  A testator still needs to sign a Will in the presence of two or more witnesses present at the same time who must then sign in the presence of the person making the Will.  The change has been brought about by the inclusion of a new subsection in section 9 of the Wills Act 1837 which states that "presence” includes presence by means of videoconference or other visual transmission for Wills made between 31 January 2020 to 31 January 2022.  The testator and witnesses all need to have a clear line of sight of the writing of the signature and each party still needs to physically sign the original Will (ie e-signatures and counterparts are not valid, even under these new rules). Although this has been introduced as a temporary measure in direct response to the restrictions put in place to combat COVID-19, there has been speculation that this may be the start of reform of the strict formalities contained in the Wills Act 1837.

As recent comments from Law Society president Simon Davis indicate, there is some appetite within the profession for the Will signing formalities to be permanently changed.  However even this small temporary change allowing remote witnessing has brought potential new areas of dispute, revealing the difficulties facing those seeking lasting reform (see Boodle Hatfield Partner Mark Lindley's recent article highlighting likely risk areas).   A delicate balance must be struck between the need to update legislation introduced in the first half of the 19th century and ensuring vulnerable and elderly testators continue to be protected by the law as they express their wishes for the disposition of their estate on death.