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In July, we reported on the government’s announcement of plans to introduce temporary legislation, backdated to 31 January 2020, which will allow people to witness a Will remotely via video conference software such as Skype, Zoom or Facetime. The significance of 31 January 2020 is that was the date of the first confirmed Covid-19 case in the UK.
Even before the pandemic, with technology growing ever more sophisticated, lawyers had begun to question traditional methods for executing documents. Indeed, as recently as September 2019, a report by the Law Commission entitled “Electronic execution of documents”, confirmed the view that electronic signatures could be used on documents, even when there was a statutory requirement for a signature. It was in reliance on this report that the Land Registry announced that from 27 July 2020, they would accept witnessed electronic signatures.
The new Order
The catchily-titled, “The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020”, was made on 4 September 2020 and comes into force at the end of this month. The new rules will mean that any Will witnessed by video technology from 31 January 2020 onwards will be legally valid, providing the quality of the sound and video is sufficient to see and hear what was happening.
Challenges
However, it is inevitable that we will see challenges. BLB’s Head of Private Client, Sarah Loveless, said:
“While these new rules are recognition by the government of the problem we face, it’s important to understand that there still remain strict procedures to follow. If they are not complied with, your Will may be invalid.
“In addition, these rules clearly increase the risk of fraud, undue influence and other problems. Somebody off-camera may be exerting pressure on the testator; the Will might be lost in the post or intercepted by an interested party; or the testator might die before the witnessing process is complete. I think it’s inevitable that we are going to see more challenges to Wills witnessed under these temporary rules.”
On the face of it, the Order is a temporary one. But the pandemic has proved time and again to be a catalyst for change. Factor in an ever-growing desire to embrace new technology in the execution of documents, and it will be interesting to see to what extent the genie ever returns to the bottle.