Where is there a will? The Government finds a way… a.k.a. how to be “present” in spirit

11 September 2020

It is a reasonably well-known challenge of making an English will that the testator or testatrix must sign “in the presence of” two (preferably independent) adult witnesses; this is the key condition of validity in most cases and has always been understood to entail physical presence. This has been a struggle during the pandemic. After a lot of patient lobbying behind the scenes by interested lawyers and in a move already adopted in other key Commonwealth jurisdictions, the British Government has laid before Parliament an impressively short decree authorising English wills to be witnessed remotely.

The existing, historic provisions (which trace back ultimately to 1837 and which required a degree of physical presence of witnesses which clashed with Covid-19 prevention measures) become subsection 1 to a new subsection 2 of section 9. In an elegant twist, the Parliamentary draftsman has simply temporarily re-written (in the new s.9(2)) the definition of “presence” to include “presence by means of videoconference or other visual transmission”. Curiously, the change is being made using powers under the Electronic Communications Act 2000, rather than the Covid-19 emergency powers.

The provision aims to cover wills made between 31 January 2020 and 31 January 2022 (unless already in the probate process at the time the decree comes into force). The decree was laid on 7 September and comes into force (unless challenged) 21 days later.

In relation to wills made on or after 31 January 2020 and on or before 31 January 2022, “presence” includes presence by means of video conference or other visual transmission