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Following the end to the temporary legislation on video witnessing, wills witnessed after 31 January 2024 will no longer be valid if they are witnessed remotely. This transition carries profound implications for law firms and the broader legal sector, particularly concerning claims and notifications related to wills.

To prevent a claim arising in respect of the validity of a will, firms must exercise vigilance to ensure any drafted wills are witnessed in accordance with the relevant legislation.

Background – legislation on video witnessing

Introduced in September 2020, the amendment to the Wills Act 1837 specified that where wills must be signed in the presence of at least two witnesses, their presence can be physical or virtual. It provided a temporary measure to accommodate social distancing and lockdown restrictions during the COVID-19 pandemic. The amendment was backdated to 01 January 2020 and applied for two years, before it was later extended until 31 January 2024.

For law firms, the adoption of video or remote witnessing had presented both opportunities and challenges. On one hand, it expanded their capacity to serve clients remotely, facilitating greater flexibility and accessibility. Law firms could reach clients who were unable or reluctant to visit offices in person, thus broadening their client base and enhancing overall service delivery and allowing the most vulnerable access to legal services.

Conversely, the reliance on video witnessing introduced complexities and risks. Ensuring compliance with evolving regulations and maintaining the integrity of the witnessing process posed inherent challenges and many practitioners raised concerns that video-witnessing allows for a higher risk of creating fraudulent or forged wills and an increase in undue influence being exerted. Law firms navigated technical issues, such as verifying the identity of participants and preserving the evidentiary value of video recordings, to uphold the validity of wills executed remotely.

Implications of the transition

With the expiration of pandemic restrictions and emergency measures on 31 January 2024, the legal sector will revert to pre-pandemic requirements for will execution. This shift heralds the end of widespread video witnessing practices within the legal sector.

The return to conventional witnessing methods may streamline procedural formalities. However, it also raises concerns regarding access to legal services and the potential for increased legal disputes over matters including authenticity, undue influence, or testamentary capacity. Clients may seek guidance on the implications of reverting to conventional witnessing practices, particularly regarding the validity of existing wills and the necessity for revisions.

For law firms, the end of video witnessing represents a crucial juncture to review and validate wills executed remotely during the pandemic. Moreover, firms must remain vigilant in addressing any discrepancies or challenges arising from wills previously executed via video conferencing. Particularly where the capacity of the testator is a concern, there is a risk of undue influence and the creation of fraudulent or forged wills.

To mitigate against potential claims and notifications associated with wills, thorough documentation and due diligence in will execution processes are essential.

Further reforms on making a will

Despite the end to the temporary legislation, there may yet be a future for electronic wills. In late 2023, the Law Commission consulted on proposals to reform the law on making a will, to enable electronic wills.

The consultation covered questions on:

  • Whether electronic wills could, or should, be able to comply with the formal requirements for a valid will
  • Whether, and how, it should be possible for wills to be executed or made using electronic means
  • Whether wills should be able to be stored and admitted to probate solely as electronic documents

The Law Commission is expected to publish its final report and draft bill in early 2025.

Conclusion

With the era of COVID-induced video witnessing having drawn to a close, the legal sector faces a period of transition and adaptation. Law firms must recalibrate their practices to align with evolving regulatory frameworks and client expectations. While the end of video witnessing may restore procedural norms, it also underscores the enduring importance of legal expertise in safeguarding the interests of clients and upholding the integrity of testamentary instruments.

For more information, contact Nicola Anthony, Risk Manager.