Wills and probate law changes in 2020

With the year now in its final quarter, Linda Cummins of GWlegal looks back at the important wills and probate law changes seen in England and Wales in 2020.

What important wills and probate law changes have been made in 2020?

With the huge changes we have all experienced personally and as a society due to the coronavirus (COVID-19) pandemic, it’s no great surprise that some significant legal changes have been brought in to the world of wills and probate in England and Wales as a result.

Some of the most noticeable changes are in relation to meeting the requirements of the Wills Act 1837 in having two people witness your last will whilst still observing the requirements of safe social distancing and lockdown rules during the pandemic.

Important wills and probate law changes which have been made in 2020, include:

video witnessing for wills
electronic signatures for deeds
online probate applications for professionals

Can you witness a will being signed via video link in England and Wales?

In response to the restrictions placed on individuals during the pandemic, in July the Ministry of Justice (MOJ) announced changes to the 173-year-old Wills Act, meaning that you can now witness a will being signed via video link in England and Wales.

Up until the announcement, the law stated that for a will to be validly executed the signature of the testator (the person making the will) must be made in the presence of two witnesses in the testator’s physical presence:

The witnesses had to have a ‘clear line of sight’ to see the testator put pen to paper and see the testator sign the will document.
Each witness had to themselves sign the same will and acknowledge their own signature in the presence of the testator.
Witnessing through a window at a distance had been considered as acceptable as a ‘a clear line of sight’.

As a result of the varying restrictions on people from different household not being allowed to mix indoors or outdoors, observing the strict legal rules would be impossible in some situations, so change was needed.

The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 came into effect on 28 September 2020 for wills made on or after 31 January 2020 (unless a grant of probate has already been issued or the will is already being administered) until wills made on or before 31 January 2022, with provision for the end date to be extended or reduced.

Electronic signatures are not permitted for wills, so the signing requirement hasn’t changed. However, what has changed temporarily is the need for the physical presence of the witnesses with the testator when the testator is signing the will. The witnesses do still need to sign the same will document that they saw the testator sign (by video link). This is achieved by adhering to the following requirements:

The attestation clause written on the will by the solicitor preparing the will must reflect that it is a virtual execution and the witnessing is by video link.
The video link must be live in real time and not pre-recorded.
The ‘view’ must show that the witnesses could see and identify the testator and see the testator sign their name at that moment to what was clearly their will document.
The will must then be sent to or taken to the witnesses, ideally the same day and then each witness sign the will on video link to the testator so the testator can identify the witnesses and see them each sign the said will.
It is sensible to record each video signing and have each party state they understand and can see what they are each doing in case any issues are raised in the future and keep it safely with the wills.

Can you electronically sign for deeds in England and Wales?

In July 2020 the HM Land Registry announced that it would accept electronic signatures for transfers of ownership of property, leases, mortgages and other property dealings, making it simpler and faster for people to move home. Electronic signatures will be accepted if the following criteria are satisfied:

the deed must be in writing
the signature must be inserted in the deed and be witnessed by a witness present when the signatory is signing
the electronic signature must be provided through an acceptable approved electronic signature platform such as DocuSign and SignIT InfoTrack

What is the online probate system?

Following a consultation period and trials to test an online service and a statutory instrument mandate, the MOJ has announced that the legal professionals must use the MyHMCTS online system to submit their applications for probate or letters of administration from 2 November 2020. More complex cases and estates can be submitted in paper format.

Though The Non-Contentious Probate (Amendment) Rules 2020 come into force on the 2 November 2020, there will be a grace period until 30 November 2020 when paper applications will still be accepted. This is to provide additional time for professional users to sign up for online accounts in preparation for the future submission of grants of probate applications via MyHMCTS.

According to the Ministry of Justice, the new system should see around three quarters of professional user applications move online. Currently, just a third of probate applications are arriving in digital form, according to the latest government figures.

Linda Cummins GWlegal