At the height of the pandemic, one of the issues that much preoccupied private client practitioners was the difficulty of witnessing wills whilst observing social distancing rules – particularly for testators who were shielding or self-isolating. This lead to a variety of inventive witnessing arrangements, such as that described by HHJ Tindal in Baker & Anor v Hewston [2023] EWHC 1145 (Ch) as follows”
“And so, at long last, I turn to Stanley’s execution of his will on 23rd May. In the intervening two months, COVID had erupted. From the GP note in June, Stanley moved in with Ronald in mid-May and had a fall. However, before he did so, Jennifer arranged for two friends of hers who knew Stanley, Mr Graham and Mr Rainsford, to come to the driveway of Stanley’s house. He stayed in the car and they saw him sign the will through the window, which he then passed to then and they each witnessed. This was an ingenious arrangement which predated the amendment to the Wills Act permitting ‘remote attestation’. In any event, it was a valid execution.”
Eventually, as noted in the judgment, the government brought in temporary emergency legislation with retrospective effect in the form of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order, which permitted wills to be remotely witnessed using video-conferencing technology. The legislation as originally drafted had a sunset clause providing for it to expire, unless extended, after 31 January 2022. The remote witnessing provisions were subsequently then extended for a further two years in January 2022, at a time when there were still concerns about new strains of the virus.
In a statement made on 01 February 2024, the government announced that it had decided not to further extend these measures:
“This temporary legislation was a response to the practical difficulties of having wills witnessed whilst restrictions on movement to limit the spread of the virus were in force, and at a time when more people wanted to make wills. The Government has always provided guidance that video-witnessing wills should be regarded as a last resort due to increased risks of formalities not being properly followed or risk of undue influence”.
“The Government decided to extend the temporary legislation for a further two years in February 2022. At the time the United Kingdom had only recently ended a further set of restrictions and there were concerns about further strains of the virus.
“However, 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.”
Remote witnessing of wills is therefore no longer expressly permitted under English law. There was a lot of debate in the early days of the pandemic around whether s9 of the Wills Act 1837 already permitted remote witnessing. It seems relatively unlikely (unless someone does not get the memo that the remote witnessing provisions have expired) that we will now see a case on this particular point.
This may very well not be the end for will reform as the Law Commission is currently conducting a review of the law of wills, which, alongside other questions around mental capacity and whether or not marriage should revoke a will, is to look at modernising the process of making a will including whether or not it should be possible to make a will electronically without the need for pen and ink signatures.
