Is witnessing wills via video legal in England and Wales?

The remote witnessing of wills by video link, made legal during COVID-19 and thereafter, is no longer permitted in England and Wales from 1 February 2024. Laura Abbott, Principal Associate at Rothley Law, explains how the pandemic affected will witnessing.

What are the valid will requirements in England and Wales?

Before we can understand how the will making process in England and Wales has been affected during the COVID-19 pandemic, first it’s important to understand that a will must be executed in accordance with Section 9 of the Wills Act 1837. This act states that no will is valid unless:

1. it is in writing, and signed by the testator, or by some other person in his/her presence and by his/her direction

2. it appears that the testator intended by his/her signature to give effect to the will

3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time

4. each witness either:

attests and signs the will
or acknowledges his/her signature in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary

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

In short, you cannot witness a will via video link in England and Wales from 1 February 2024. Although, video witnessing was possible for wills executed between 31 January 2020 and 31 January 2024 due to emergency and temporary provisions put in place to assist the will making process during the COVID-19 global pandemic.

A statement made in parliament on 1 February 2024 stated that: "The special circumstances which applied when this measure was put in place no longer apply. In-person witnessing of wills is no longer subject to restrictions. As such we have decided not to extend the temporary legislation beyond 31 January 2024."

How did COVID-19 affect making a will in England and Wales?

The COVID-19 outbreak meant that the final requirement of will validity, to have the signing of the will witnessed, became challenging due to periods of lockdown, shielding and self-isolation. Therefore, in July 2020 the UK government announced plans to change the law to allow wills to be witnessed remotely in England and Wales.

These changes were made via new legislation in September 2020 and reforms were backdated to 31 January 2020. The changes aimed to reassure the public that wills witnessed via video link would be legally recognised and the changes were initially in place until 31 January 2022 which was then further extended until 31 January 2024.

The Ministry of Justice (MOJ) stated that: “the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so.”

Testators needed to be careful to ensure that the strict requirements for remote witnessing were considered carefully and followed, for example there need to be two video calls, one for the testator to sign in the presence of the witnesses and one for the witnesses to sign in the presence of the testator, ideally within 24 hours. Both witnesses should be present at both.

Why was remote will witnessing not permanent?

The change to the law was only ever intended to be temporary and as an emergency measure in response to the pandemic, to allow wills to continue to be made in those unprecedented times.

It was a welcome measure, but the concern with wills being able to be witnessed in this way more generally is the potential for increase in fraud and undue influence of elderly and vulnerable testators and reduced ability to ensure testamentary capacity for practitioners. Most practitioners considered it an option of last resort and it is unclear how widely it was used.

Will there be will making reforms?

The Law Commission first consulted on reforming the law of wills in 2017. With legislating dating back to 1837, calls for reform are based on the law not reflecting modern society. The project was paused temporarily during the pandemic, but a Supplementary Consultation Paper was published on 5 October 2023 on two topics:

possible reforms to enable electronic wills
the rule that a marriage or civil partnership revokes a will (to assist with the growing problem of predatory marriage)

The Law Society maintains that there should be longer-term reform to the law to give judges powers to recognise the deceased's intentions even where their will was not witnessed strictly in line with the 1837 Act and to reflect modern lives and societal changes over time given that that Act came into force nearly 200 years ago.

However, any perceived relaxation of the rules is contentious, as the requirement for witnessing is considered one of the fundamental protections for vulnerable testators from the potential for fraud and undue influence.

Summary

Wills which were executed via video witnessing during January 2020 and January 2024 will still be legally valid wills. However, if there are concerns that there could be a dispute after death, and it is possible now to re-execute the will in the conventional way, this could protect against any future dispute.

For wills being executed now they cannot be witnessed via video and the strict requirements of S9 need to be observed. If for any reason a testator is self-isolating, then case law does provide for wills to be witnessed through windows or in a large open space.

About the author

Laura Abbott is a Principal Associate at Rothley Law and is a member of the Society of Trust and Estate Practitioners (STEP).

Find out more

Wills Act 1837 (Legislation)

Guidance on making wills using video-conferencing (GOV.UK)

Video-Witnessing Wills (Parliament)

Images

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Publication updated

5 February 2024

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.