Over the last couple of months, since the Coronavirus lockdown was first implemented, we have all had to adapt to a new normal. For us, here at Howells Solicitors, this has meant being flexible with our services wherever possible to ensure we can still offer our clients the high-quality assistance we are known for.
However, this month, the Ministry of Justice has announced a change to the 183-year-old rules regarding the witnessing of wills. It’s been labelled the ‘biggest change to law for 200 years’, so it’s important to read all about it.
How is Wills and Probate Law Changing?
During lockdown, the need to minimise in-person contact has resulted in a growing demand for digital services to be made available online. There have been calls in some areas for changes to the law to help professionals adapt more quickly in order to meet the changing needs of clients during this difficult time.
In particular, some have expressed a need for the ability to witness wills over Zoom, Skype or other video platforms in a form of virtual presence, while social distancing rules continue to apply.
Under current UK law, section 9 of the Wills Act 1837 provides that wills must be signed in the presence of two or more witnesses. Currently, witnessing can’t take place by video link because the witnesses must be in the physical presence of the testator.
Coronavirus has prompted many people who did not already have a will to create one speedily – especially key workers and those at higher risk – which has led to many wills being executed by the will-maker alone during a video call being watched by the witnesses, with the expectation that the paperwork will be signed by the witnesses later on, possibly after the lockdown measures have been lifted.
Read more: Decided You Need to Write a Will ASAP? Here’s the Essential Need-to-Know Info
However, there are many potential problems with such an approach. For example, what happens if the will-maker dies in the meantime?
As a result, the legal sector is expecting a surge of contentious probate matters over the coming months, as relatives dispute the validity of wills witnessed via online video broadcast.
This month, the Ministry of Justice has unveiled plans to bring in temporary rule changes in an effort to reduce the risk of a massive spike in litigation in this area. An amendment to the Electronic Communications Act of 2000 will be made allowing the use of video witnessing of wills and this is expected to be made retrospective to January 31st (two days after the UK’s first COVID case).
This should mean that anyone who has had a will witnessed via video link since 1st February 2020 will be legally covered.
The full details of the proposed changes are not yet known. People should therefore exercise caution when considering the use of video witnessing in relation to their wills and, wherever possible, continue to try and observe the strict requirements of the Wills Act 1837.
The amendment is not expected to be permanent and will be reviewed in line with planned modernisation of wills legislation, currently under review by the Law Commission.
How ‘Window Signing’ Set the Precedent
As an alternative to the usual practice, during lockdown some legal professionals have been offering to watch the signing of a will through a window. This is something which dates back to the case of Casson v Dade in 1781, when a maid in a horse-drawn carriage witnessed a will through a window and it was judged to meet the witnessing requirements.
However, there have been cases, such as Brown v Skirrow in 1902, where distractions have been deemed to be too great and whether or not a will-maker signing a will has been in the line of the sight of a witness has been debated.
Does the Executor Have to Sign the Will?
The short answer is ‘no’. When the will-maker signs the will, there must be two witnesses present at the same time who must attest and sign the will.
Anyone can be a witness, but it is best if such witnesses are adults who are able to fully-understand what they are doing in acting as a witness (although they do not need to know that the document being signed is a will).
They must also be independent, which means neither the witnesses nor their spouses (or other partners) should receive gifts under the will.
A witness does not have to be a professional person. However, most people will choose to have a legal representative write the will, act as a witness and help conduct the signing of the will to ensure it is legally binding. In some instances, a solicitor will be both an executor and a witness.
Are Any Other Changes Happening?
Lasting Powers of Attorney
On 17th July, a new online service to improve Lasting Power of Attorney services was launched.
The new ‘Use a lasting power of attorney’ tool unveiled by the Office of Public Guardian (OPG) will help those acting as an attorney to manage other peoples’ affairs more easily and safeguarding will become a top priority.
This new digital tool has been designed to make contacting banks and healthcare providers easier, replacing the current, slow, paper-based system which can delay some important decisions.
Nick Goodwin, Public Guardian for England and Wales, said:
“More people are taking the important step to plan for the future and apply for a Lasting Power of Attorney, and we want to make sure those they entrust with making vital decisions on their behalf receive the very best possible support.
“Our new digital service will ensure attorneys can make effective and efficient decisions when managing their loved ones’ affairs – without the delays a paper-based services can cause.
“But this is just one part of our ambitious transformation programme and we are constantly looking at how we can improve as an organisation to benefit the public and our partners.”
This tool is only available for existing Lasting Powers of Attorney (LPA). Therefore, if you would like to ensure peace of mind by implementing an LPA, please speak to our Wills and Probate solicitors.
It is important to note that, although the probate system has not changed dramatically during lockdown, applications are taking longer than usual to process.
Do You Need A Will?
If you don’t have a will and are considering creating one, or have an existing will which needs updating, please read more about our wills and probate services on this website and get in touch.
Our friendly and knowledgeable solicitors will be happy to talk you through the process, the benefits, and what these recent legal changes mean for you.