Bellamy: Special circumstances no longer exist
The pandemic measure to allow video witnessing of wills came to an end last week, after the government decided not to extend it beyond 31 January.
Justice minister Lord Bellamy said “the special circumstances which applied when this measure was put in place no longer apply”.
The legislation was originally introduced in September 2020, amending the Wills Act 1837, so the normal requirement that two people must witness the testator signing to make their will in person could be extended to include remote witnessing by video-link.
In a parliamentary statement, Lord Bellamy said: “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.”
It decided to extend the temporary legislation for a further two years in February 2022, when there were still concerns about further strains of Covid 19.
The minister said: “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.”
Emily Deane, technical counsel and head of government affairs at the Society of Trust and Estate Practitioners (STEP), said: “STEP understands that this legislation was introduced in relation to the challenges created by the pandemic, which are diminishing.
“However, we think the legislation can still be useful in extenuating circumstances when witnesses cannot be present with the person making the will. We hope that the Law Commission’s wills review will consider incorporating it.”
Last October, the Law Commission launched a supplementary consultation on electronic wills, six years after its original proposals, asking whether a new Wills Act should give the Lord Chancellor an enabling power to introduce electronic wills at some point in the future or whether they should be introduced on the face of the legislation.
The commission said it continued to think that the Act should be amended to “exclude the possibility of electronic wills fulfilling the current formality requirements that were devised with paper documents in mind”.
This was necessary to “exclude the possibility of the most basic, and easily amended – and forged – types of electronic documents and electronic signatures from satisfying the formality requirements for a valid will”.
In their responses, both the Law Society and STEP agreed that a new Act was needed to introduce electronic wills, subject to safeguards.
STEP said they should only be valid if registered and stored on a government-authorised central storage system. “It is thought that this could be done using blockchain technology.”
STEP called for a new Electronic Wills Act which “on the face of that act” permitted electronic wills and contained a list of the requirements that must be met for an electronic will to be valid.
Chancery Lane took a different approach, calling for the new Wills Act to contain an enabling power allowing the justice secretary to bring forward secondary legislation on electronic wills.
The justice secretary would be “required to undertake advice from an expert and representative committee” before doing so.
Both STEP and the Law Society supported retaining the option of a paper will to ensure that people who might struggle to make a will electronically are not disadvantaged.
By what processes will the testator and witnesses “sign” electronic wills and how will challenges to such processes occur ?