11th August 2020
Isolation during the coronavirus pandemic has meant more people are relying on digital services to get things done while keeping safe at home – and government institutions have been adapting to cope with these changes.
During July, two key developments were announced which affect people making a will or acting under a power of attorney.
‘Under current law, a will must be signed in the presence of at least two witnesses to be valid. This is a crucial safeguard to protect people against undue influence and fraud,’ explains Stephen Myers, head of the wills and probate team with Myers & Co Solicitors in Stoke-on-Trent. ‘All well and good in “normal” times, but with the UK having been under lockdown for months, and large swathes of the population still self-isolating or shielding, meeting this legal requirement has proved challenging.’
In a welcome move the Government has now announced the legalisation of wills witnessed remotely, making it easier for people in England and Wales to record their final wishes during the coronavirus pandemic. Alongside this, the Office of the Public Guardian also launched a digital service for lasting powers of attorney.
The change in law, announced on 25 July 2020, means that anyone wishing to draw up a will can get this vital legal document witnessed using video link software such as Zoom or FaceTime. However, the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so. For example, a will witnessed through a window is already considered legitimate in case law as long as there is clear sight of the person signing it.
The reforms mean that wills witnessed via video link will be legally recognised, as long as the quality of the sound and video is sufficient for all parties involved to see and hear what is happening at the time. The type of video-conferencing or device used is not important, as long as the person making the will and their two witnesses each have a clear line of sight of the writing of the signature.
The measures will be backdated to 31 January 2020, the date of the first confirmed coronavirus case in the UK, meaning any will witnessed by video technology from that date onwards will be legally accepted. The change will remain in place until 31 January 2022, or ‘as long as deemed necessary’, after which wills must return to being made with witnesses who are physically present, the Government has said.
The Government has published guidance on making wills using video-conferencing which includes requirements such as the witnesses being able to see the will-maker signing the will and the will-maker being able to see both of the witnesses signing the will after it is delivered to them in person or by post. The making of the will should be recorded and the audio-visual file should be saved.
A will still needs to be signed by two witnesses who are not its beneficiaries and electronic signatures will not be permitted.
Also in July, the Office of the Public Guardian announced the launch of a new digital ‘Use a Lasting Power of Attorney’ tool which is designed to help those acting as an attorney to contact organisations like banks and healthcare providers more easily.
It replaces the current paper-based process which can lead to weeks of delay, as documents need to be requested and confirmed between organisations and individuals, before being posted as physical copies.
The new online system will allow those acting as an attorney to provide a secure code, which when submitted to the online portal will quickly confirm their status as an attorney and the power they hold, authorising them to take immediate actions on their loved ones’ behalf.
Crucially, the new tool maintains existing checks, including confirming whether someone has the legal right to act as an attorney and the powers they may be entitled to, thus ensuring that the vulnerable and elderly are still protected from abuse of a lasting power of attorney.
The new system can be accessed at www.gov.uk/opg.
If you are thinking about drawing up or updating a will, or you wish to discuss arranging a lasting power of attorney, our highly experienced private client solicitors can guide you through the whole process. They can also explain how you can legally get your will witnessed remotely if you are self-isolating or shielding during the coronavirus pandemic.