Remote witnessing of wills – legislation now before Parliament

Following (slightly oddly) the publication of the guidance as to the law, the relevant legislation has now been laid before Parliament to come into effect on 28 September 2020 to allow on a temporary basis for witnessing of wills to take place by video.  The Wills Act 1837 (Electronic Communications)(Amendment)(Coronavirus) Order 2020 provides for the Wills Act to be amended with effect between 31 January and 31 January 2020 so as to allow for video witnessing.  The legislation does not apply to grants of probate issued before this instrument was made, nor does it affect anything done pursuant to a grant of probate being issued prior to the legislation coming into force. This is the case even where the will was made on or after 31 January 2020.  As distinct from grants of probate, the legislation does apply to grants of letters of administration (issued when a person dies without having made a will), provided that the video-witnessed will in question was made on or after 31 January 2020.  The Explanatory Memorandum also makes clear that

The Government considered many other options for reform of will making in the pandemic, but has chosen not to pursue certain reforms in view of the perceived risks of undue influence or fraud against a testator. As such, the legislation does not amend Section 9(a) of the Wills Act 1837, meaning that neither the remote signing on behalf of a testator, nor the use of electronic signatures or counterpart documents are permitted under these reforms.

It should perhaps be noted that no such equivalent legislation has been passed in relation to Lasting Powers of Attorney: as the OPG guidance makes clear, the relevant steps have to be taken in person.



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