On 25 July 2020 the Ministry of Justice (MOJ) announced that the government will be introducing new temporary legislation to allow wills to be witnessed virtually in England and Wales. The legislation will be backdated to apply to wills made since 31 January 2020 and is expected to remain in force until 31 January 2022, although the period may be shortened or extended if deemed necessary. It is anticipated that the legislation will come into force in September 2020. The intention is that the use of video technology in executing wills should be a "last resort" and that where people can make their will in the conventional way they should do so.

The proposed legislation will vary the requirement of "presence" for the purposes of section 9 of the Wills Act 1837 (WA 1837) to allow "presence" for those witnessing a will to include virtual presence via video link as an alternative to physical presence. The standard formalities for executing a will under section 9 of the WA 1837 will otherwise remain in force.

The MOJ has published detailed guidance on the proposed legislation including a stage-by-stage process for signing and witnessing a will by video link.

The government has made it clear that this measure is designed to be temporary to deal with the particular difficulties thrown up by COVID-19 and has no immediate plans to allow further relaxations such as electronic signatures or counterpart wills.

The measure has been welcomed by STEP and the Law Society although the Law Society has noted that both probate professionals and the public will need greater clarity on when remote witnessing is appropriate and what to do in exceptional circumstances, such as if the testator dies while the will is being sent to a witness’ address for them to sign.

For more information on will formalities, see Practice note, Executing wills and codicils. For answers to frequently asked questions about the implications of the COVID-19 outbreak on wills, see Practice note, COVID-19: private client FAQs: Wills. For Practical Law's global resources on COVID-19, pandemics and business interruption, see Global Coronavirus Toolkit.