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COVID 19: Key changes to The Wills Act 1837 - will it help or hinder?

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COVID-19's introduction of The Wills Act 1837 (Electronic Communication) (Amendment) (Coronavirus) Order 2020.

Due to the COVID-19 pandemic, we are all currently facing unprecedented times that have impacted all aspects of our lives.

The COVID-19 pandemic has also introduced key changes to the legislation governing the way Wills may be produced and executed. Of the many legislative changes arising as a direct result of the pandemic, one in particular has ensured that the process of making a Will has been made easier and safer whilst government restrictions continue and many continue to work remotely.

The preparation of a Last Will and Testament has always been an important process strictly governed by both case law and Acts of Parliament. There are strict statutory formalities that apply in order for a Will to be validly executed. Most notably s.9 Will Act 1837 sets out that:-

  • A Will must be in writing;
  • A Will must be signed by the person making the Will, known as the Testator; and
  • The Testator's signature must be witnessed by two witnesses

This is to ensure that Wills are validly executed and that the Testator's wishes are portrayed correctly.

As set out above, a Will has historically been witnessed by two independent witnesses to ensure that it is validly executed. Prior to the COVID-19 pandemic, the witnessing of a Will was a straightforward process in that the Testator would either visit our office so that we may act as the two required witnesses, or, two of our employees would visit the home address of the Testator to act as their witnesses if required.

In light of ongoing and potentially long-term government restrictions, the way in which we may witness Wills and conduct client meetings will need to adapt and change. The Wills Act 1837 (Electronic Communication) (Amendment) (Coronavirus) Order 2020 SI 2020/952 was enabled by the Electronic Communication Act 2000 and has updated the way in which we can conduct meetings and validly execute Wills remotely.

The introduction of this new legislation means that Wills can now be remotely witnessed via video call. S.9 Wills Act 1837 states among other requirements, that no Will shall be valid unless it is signed by the Testator in the presence of two or more witnesses present at the same time. Under s.9 each witness was required to sign the Will or acknowledge their signature in the physical presence of the Testator in order for the Will to be validly executed.

The Wills Act 1837 (Electronic Communication) (Amendment) (Coronavirus) Order 2020 SI 2020/952 amended s.9 Wills Act 1837 to allow the use videoconferencing or other means of visual transmission. This enables Testators and witnesses to sign a Will and be in the presence of each other by means of video communication instead of being physically present and the Will can be validly executed under s.9 Wills Act 1837. It is important to note that this new law only applies to Wills made after 31st January 2020 and on or before 31st January 2022.

This development in legislation is a welcomed change in light of the ongoing pandemic. If you are unable to leave your house, whether that is because you are self-isolating, vulnerable or understandably cautious of the pandemic, you now have the ability to make your Will remotely.

If you would like to discuss making or changing your Will, then please do not hesitate to contact our Private Client Department so that we can assist you through this process and provide you with the necessary advice.