The Winds Of Change Have Begun To Blow
You would have had to be living on another planet to be unaware that the Ministry of Justice (MOJ) recently announced that the law of Wills in England & Wales is to be amended to allow the remote electronic witnessing of Wills using video conferencing software.
Once signed by the testator, a Will can then be posted to witnesses, who sign it themselves during a further web conference. Electronic signatures however will not be valid.
Unsurprisingly, this news has created a large split within the Legal Industry with some stating that the reforms are long overdue and chomping at the bit, seeing the changes as a matter of common sense with others expressing concerns and some even labelling them as dangerous anticipating a spike in the number of contentious probate cases.
The new rules are expected to come into effect in September but the precise scope and operation of the legislation is unclear at present, and it cannot be guaranteed that the proposed legislation will actually come into force. The amended law will be kept in place until 31 January 2022, or as long as deemed necessary. The government can also decide to shorten the term. Once the term ends, Wills must return to being made with witnesses who are physically present.
The intention is to backdate the legislation 31st January, in order to reassure the public that Wills remotely attested during the coronavirus epidemic are valid. However, both the legal profession and the authorities have not been able to give unanimous assurances that this procedure will survive a challenge, perhaps made many years in the future.
We at Countrywide Tax & Trust Corporation Ltd, have been following events with interest since the official announcement was made by the MOJ but have chosen not to add our voice to others, until we were able to fully review the official guidance issued by STEP.
The guidance for STEP members reinforces the Ministry’s advice that remote witnessing should only be used in an emergency / last resort when conventional witnessing is impossible, and extreme caution is required when using it to detect fraud or undue influence. The guidance however is written in advance of the enactment of the statutory instrument and so will have to be revisited if any changes are made to the legislation as it goes through parliament
Even with remote witnessing there is no doubt that vulnerable clients will still face obstacles. For example, a client who is shielding, will still somehow need to leave their hose to post the Will to the witnesses or someone will need to collect it. There is also a question around the fact that witnesses will then have access to the content of such a private document
Change is very definitely in the air and the Wills Act is unlikely to go unaltered for another two centuries and so it’s vital that we take the necessary time to find ways to work around the restrictions safely, while still protecting the rights of some of society’s most vulnerable and that we consider the use of video Wills on a case by case basis.
The new system proposes to be exceptionally complex to use and then only when it is impossible to use any other method so, for those who thought that they would build their business around Video Wills, they will need to think again!
Clive Ponder TEP, Director
This article was submitted to be published by Countrywide Tax & Trust Corporation Ltd as part of their advertising agreement with Today’s Wills and Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills and Probate.