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UK Government Set to Allow Video-Witnessing of Wills - But All the Change Offer Real Assistance?

In March, we wrote about the challenges self-isolation and social-distancing presented to the legalities of signing a will, in particular the requirement that a will is signed in the presence of at least two witnesses. We suggested a technological solution available in the form of electronic signatures for the testator and the two witnesses being present via a video meeting. 

IN DEPTH


The Ministry of Justice has now announced that the Government is introducing legislation to temporarily allow people to use video-conferencing technology for the witnessing of wills by extending the definition of ‘presence’ of those making and witnessing wills to include a virtual presence. The amendment in and of itself sounds promising, however, as a wet signature is still required and the witnesses will still have to sign the same document, the practical challenges and health risks remain. If someone at risk is shielding and cannot attend an in-person signing, does it really help them if they instead need to go to the Post Office? 

The Government guidance outlines a 5 stage signing and witnessing process that makes it possible for a person to sign a will in the presence of two witnesses by way of a two or three way video-link. Following the initial video-conference, the will document must be taken to the two witnesses (ideally within 24 hours) who must then sign the same will document by way of a further video conference. Not only does the act of sending the will document seem contradictory to the goal of protecting people shielding or self-isolating but there are additional risks associated with the built-in delay of the will physically moving between the testator and witnesses – that the testator may die during the period of delay, of the will becoming lost, getting damaged and potentially the risk of fomite transmission of COVID-19 as the document passes between households. 

The decision not to allow electronic signatures, even on a temporary basis, offers no real solution for those shielding and self-isolating. The Law Commission has been reviewing the legislation in relation to wills since July 2017 and while we are told that they will be considering the possibility of electronic wills sometime in the future, the legislation remains largely as it did in 1837. The legislation needs to be modernised to take into account societal and technological changes, now more than ever.

© 2020 McDermott Will & EmeryNational Law Review, Volume X, Number 212

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About this Author

Simon Goldring, London, UK, private wealth, tax matters, estate planning, trust, estate, tax lawyer, Africa, United Kingdom, McDermott Will Emery
Partner

Simon Goldring advises clients on a wide range of international private wealth and tax matters. He acts for a variety of clients ranging from high net worth individuals, family offices and entrepreneurs to multi-national corporations both in the UK and internationally including South Africa, Latin America, the Far East and the Middle East.

Simon undertakes all types of private client work including the preparation of wills, powers of attorney, domestic trusts, probate and income and capital tax planning. Internationally, Simon advises on...

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Simon Gibb, McDermott Will, London, domiciled individuals lawyer, trust assets protection attorney
Associate

Simon Gibb focuses his practice on tax advice, trust and estate planning for UK and non-UK resident and domiciled individuals, including on the protection and devolution of trust assets. While he advises on all aspects of personal taxation and structuring, his practice has an emphasis on the structuring of family businesses through trusts and foundations. Simon is regularly involved in both non-contentious and contentious tax work.

Simon also advises individuals, family offices and trustees of offshore settlements on trust law matters and UK tax matters.

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