Westminster update: Remote witnessing of wills becomes law

Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.

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Five things you need to know

1. Remote witnessing of wills to become law, government announces

Last Saturday the government announced a change in the law to allow video witnessing of wills. Under the current law (the Wills Act 1837), it is not permitted to witness a will via video messaging as a witness must be physically present.

The new announcement recognises that an increasing number of people have sought to make wills during the COVID-19 pandemic, and that for those shielding or self-isolating it is extremely difficult to follow the normal legal requirements for making a will. The law will therefore be amended on a temporary basis to clarify that those making and witnessing wills can meet the requirement to be 'present' by being present virtually via a video-link.

These changes will be made via new legislation in September and will allow for wills witnessed in such a way will be deemed legal, as long as the quality of the sound and video is sufficient to see and hear what is happening at the time. There will be no change to the requirement for there to be two witnesses.

The measures will be backdated to 31 January 2020, the date of the first confirmed coronavirus case in the UK, and will be in force for two years, which is in line with other coronavirus legislation. This period can be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures.

Read the announcement

Read our response

Read the government guidance on making wills using video-conferencing

2. Justice Committee publishes report on coronavirus and the courts

Last Thursday , the Justice Select Committee published its report following an inquiry into the impact of coronavirus on the courts. The Law Society president, Simon Davis, and head of public law, Ellie Cumbo, both gave oral evidence to the Committee for its inquiry, and our evidence was referenced throughout the report.

The report focuses on four areas:

  • the criminal courts
  • civil courts and tribunals
  • technology and the courts
  • the recovery plan

The Committee found that closing courts and reducing court capacity before implementing reforms that can increase capacity left the criminal justice system in a difficult place going into the crisis. It added that there is an absence of data on how technology in the courts has been received by court users, and whether they are satisfied with the process and outcome of their hearings.

The Committee argued that COVID-19 should not be used as an excuse for bringing in permanent changes without prior consultation and suitable evaluation of their effects, and set out their opposition to replacing some types of jury trial with trial by judge and magistrates.

Recommendations from the Committee included an invitation to the Ministry of Justice to set out with a timeline how the provision of basic information relevant to the running of the courts and tribunals system is to be achieved, asking HMCTS to set out a policy to ensure that court users are sufficiently able to participate in virtual proceedings, and a call for an urgent review to look at the impact of technology in criminal cases.

In addition, the Committee announced that it has launched a full new inquiry into court capacity.

Read the report in full (PDF)

Read our oral evidence (PDF)

3. BEIS Committee chair writes to business secretary to highlight coronavirus support gaps

Following a series of sessions on the impact of coronavirus on the UK workforce, Darren Jones MP, chair of the Business, Energy and Industrial Strategy (BEIS) Committee, has written a letter to secretary of state Alok Sharma MP outlining a number of issues for the government to address. He has requested a response by 1 September 2020.

The chair stated in the letter that businesses, business representatives, workers and trade unions have expressed concern that in the event of a major recession and significant job losses key skills and knowledge will be lost.

The Committee has asked what planning BEIS is undertaking and what dialogue is it having with strategically important sectors to ensure that key skills and knowledge are sustained and protected in the short and medium term; how the Government will measure success in its ability to retain the skills required to recover quickly; and how this is aligned with wider policies and goals such as the Industrial Strategy and the net zero target.

The letter noted that despite the various schemes that were introduced, including the Coronavirus Job Retention Scheme and the Coronavirus Self-employment Income Support Scheme, the Committee had received written submissions and oral evidence from a range of stakeholders who pointed to groups of workers that were ineligible, including new starters, self-employed workers with an annual trading profit in excess of £50,000 and directors of limited companies who took a large part of their income in dividends.

The chair asked the secretary of state what lessons BEIS and HM Treasury have learned from these gaps in support, and highlighted a recommendation from the Committee that the government review the status of workers, and how they are categorised by HMRC, so that there will not be similarly excluded workers in the future.

The letter noted that on 17 July the prime minister announced that councils in England would be given new powers to close shops, cancel events and shut outdoor public spaces to manage local outbreaks of coronavirus.

The chair asked what lessons have been learned so far from the Leicester lockdown and what support has been given to businesses in Leicester that were required to close. The Committee also asked how the Department has been monitoring the impact of the Leicester lockdown and what plans it has for monitoring future lockdowns, and whether the Department has plans to offer tailored financial support schemes for businesses and workers affected by local lockdowns.

The letter also raised issues, questions and recommendations in relation to tapering support for workers, treatment of workers during the pandemic, health and safety issues, bad corporate behaviour, late payments and the UK’s supply chain, and consumer protection.

Read the letter in full (PDF)

4. Chief secretary outlines spending review priorities

Last Tuesday the chief secretary to the Treasury, Stephen Barclay, gave a speech at a virtual event hosted by the think tank Onward on his approach to the comprehensive spending review, which is due to complete in the autumn ahead of the Budget.

Barclay said that he is focusing on three areas for the spending review: outcomes, speed and data.

With regard to outcomes, Barclay said he wants to ensure that all spending commitments are tied directly to outcomes that can be felt in ordinary people’s lives. He noted how many policy issues are divided across departments, which impacts on delivery, and identified this as something he would be looking to address.

On the second area of focus – speed – Barclay argued that the pandemic has shown that the government can deliver schemes at speed when needed.

On the subject of data, Barclay said the government needs to demonstrate how use of real time data can improve public services and drive better government decision-making. He said he will be looking at incentivising government departments to provide better data to support proposals, and he will be encouraging the Treasury to do a better job of using this data when making decisions.

He added that one focus of the spending review will be addressing legacy IT across government and investing in new IT infrastructure where necessary.

More generally, Barclay spoke about the government’s “defining ambition” to level up the country, and argued that there is a need to review the Treasury’s Green Book (which sets out the Treasury's guidance for making investment decisions). He said that the Treasury cannot keep basing decisions solely on simple cost-benefit analyses, and that there needs to be room for the Treasury to prioritise reducing regional inequality, for example, in investment decisions.

Watch the speech in full

5. Lords discuss operation of the probate service

Last Monday in the House of Lords Baroness Ludford (Liberal Democrats) asked an oral question on the assessment the government has made of the operation and the resourcing of the Probate Service.

Justice minister Lord Keen of Elie, answering on behalf of the government, stated that current waiting times are within expected timeframes, and that the service has continued operating effectively throughout the coronavirus pandemic. He said that additional resources would be put in place by HMCTS to prepare for increased demand as a result of the pandemic.

Several peers challenged Lord Keen’s description of the current functioning of the system, including Lord Howarth of Newport (Labour). He asked the minister to guarantee that fees would not be raised while performance remains poor. Lord Keen responded that he did not accept that the service is performing poorly, adding that “no guarantee can be given regarding fees.”

Baroness Jones of Moulsecoomb (Green) asked whether the introduction of remote witnessing for wills could increase disputes and administrative problems which could have an impact on the probate service. Lord Keen noted that the government has taken steps to simplify the service, by replacing affidavits with a statement of truth, accepting electronic signatures on probate forms, and allowing legal representatives to sign legal statements on behalf of clients.

Read the full transcript

Coming up this week

Both Houses of Parliament are currently on recess. They are due to return in the first week of September.

If you made it this far

With local lockdowns becoming increasingly likely, take a look at our blueprint for solicitors and firms facing a lockdown in their area.