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12 Jan 2022

Video-witnessed wills extended until 2024

Extension will help vulnerable people who are shielding or self-isolating
A woman on a video call checking documents

Vulnerable people in England and Wales will be able to have their wills witnessed online using video-link services such as Zoom up until 2024.

The measure was originally brought in during the pandemic and has now been extended by the government - meaning people having to isolate will have peace of mind their last wishes will be legally recognised.

However, there are still strict measures that must be taken when witnessing a will. Here, Which? rounds up everything you need to know if you're thinking about using this extension.

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What are the changes?

Under the 1837 Wills Act, two witnesses' signatures are required in the physical presence of the person making the will (the testator).

Currently, the requirement that a will is made 'in the presence of' also includes those witnessing remotely, as long as the quality of the sound and video is sufficient to see and hear what is happening.

This temporary legislation was introduced in September 2020 as a pandemic measure after vulnerable people who were shielding or self-isolating found it difficult to follow the normal legalities of making a will. The changes were retrospective from January 2020.

This has now been extended until 31 January, 2024, while the Law Commission considers potential reforms to the law around wills, including whether to make the changes permanent.

Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice, Dominic Raab said it was a 'common-sense measure' that would give vulnerable people peace of mind.

Video-witnessing should remain a 'last resort'

According to the Law Society, around 14% of legal professionals who had been involved in making a will since the change in 2020 had used software such as Zoom or FaceTime for witnessing calls.

The research found that of those surveyed, 59% reported a positive experience of video witnessing but 44% also reported an increase in the overall time taken.

The government said witnessing wills via video should be used as a 'last resort' and people should arrange the physical witnessing of wills if it was safe to do so.

Wills witnessed through windows are already considered legitimate in case law provided they have clear sight of the person signing it.

'Strict process must be followed'

James Buchan from Which? Legal said people should be aware there is a 'strict process' which must be followed for the will to be considered correctly executed and valid.

There is extensive guidance on the government website about the process.

For example, the will-witnessing must be done in real-time and a recording should be made during the process.

By law, the two witnesses must not be the will's beneficiaries and must see the will-maker signing the will and not just their heads and shoulders. If they do not know the person making the will, they should ask for confirmation of the person's identity.

Ideally, the witnesses should be physically present with each other but if not they must be present at the same time by way of a two or three-way video link.

The ban on electronic signatures will continue due to the risks of undue influence or fraud.

Changes welcomed by Which? Legal

The changes have been welcomed by Which? Legal and the Society of Trust and Estate Practitioners (STEP).

James Buchan, from Which? said: 'There is growing momentum towards reform in the way wills can be executed, and it looks as though this trial may be used to provide confirmation as to the viability of digital execution in the long term.

'However, we have yet to see the outcome of any litigation regarding wills executed in this way, and whether or not they will stand up to judicial scrutiny.'

The Law Society said although this change was a 'useful option to have', it looks forward to the Law Commission report on wills reform which it hopes will expand on other issues to improve the service in England and Wales.

Stephanie Boyce, president of the society added: 'The Law Society continues to take the view that the most effective reform of the law would be to give judges powers to recognise the deceased's intentions even where their will may not have been witnessed, in line with the Wills Act.'

Our top tips for planning your will

As many as 60% of people don't have a will in place, by some estimates.

Although the process can seem daunting, it's important to put one in place because if you die without one, your estate will be distributed according to strict rules, meaning the people you care about may lose out.

Don't put it off

There are more reasons than you think for making a will.

For example, you don't just decide how your estate is divided up, you can also have a say as to who should look after your dependents. If you have children under 18, you can appoint legal guardians.

Unmarried partners aren't entitled to anything from your estate unless specifically stated in your will - no matter how long you've been together. Writing a will ensures your partner will receive a fair share.

Use a wills planner tool

Before writing a will, it's worth thinking about who will inherit your most important assets and any other wishes for your estate.

You can plan out your will, including your executors and beneficiaries, with our free wills planner tool.

Keep your assets up to date

We recommend keeping an up-to-date list of the assets you have - including bank accounts, pensions and insurance policies - to save your executors time tracking them all down. You should also make a list of any debts - this could include a mortgage, credit card debt and equity release.

Make sure you get your assets valued regularly as these will change over time.

Use a will-writing service

A will needs to be written and signed correctly in order to be valid. If you'd like advice on making a will, consider using a will-writing service or hiring a solicitor.

Which? Wills offers a will-writing service to help guide you through the process.