Lockdown & The Legal Industry: The Virtual Witnessing of Wills

By Tanya Kriplani Manglani

The current law dictating the making of wills is outlined in the Wills Act 1837 – last month, the government published guidance confirming that this piece of legislation will be amended to include what is being called the biggest change to this particular sector in almost 200 years.

Until now, as per Section 9 of the Wills Act 1837, in order for a will to be considered valid it had to be signed in front of two independent witnesses, and then in front of the testator.

Unsurprisingly however, this process has become inaccessible to those wanting to make wills during the COVID-19 pandemic given the lockdown, self-isolation and social distancing measures that are in place. As such, the government has announced that, for a temporary period, people will be allowed to make legally recognized wills with their witnesses present virtually, but only if it is not possible to follow the conventional method.

The new legislation will apply retrospectively to wills made since 31st January 2020 and will stay in place for a fixed period of two years. Whilst it may seem like this change brings what is a very old law up to date, many have outlined a number of issues relating to the logistics of virtual witnessing which may arise.

For instance, whilst the law is being updated to allow virtual witnessing, it does not allow virtual/electronic signatures. This means that the will has to be transported between the parties involved, which increases the risk for errors and confidentiality breaches. Amongst other practical issues, the risks for fraud, duress and undue influence are also increased.

Despite the issues, this change was necessary to accommodate the times we are living in. As Farrer & Co’s Rachel Mainwaring suggests however, it can and should be treated as a first step towards further reform, which is long overdue in this area.


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