UK IHT and Temporary Pandemic Will Legislation: The Permanent Discussion on Remote Witnessing

During the pandemic, the UK government introduced temporary legislation allowing wills to be witnessed via video link, a measure that has since expired but left a lasting question: should remote witnessing become permanent? The Ministry of Justice reported in 2021 that over 4.2 million wills were executed in England and Wales between March 2020 and September 2021, with an estimated 5%—roughly 210,000—using remote witnessing under the temporary provisions (Ministry of Justice, 2021, Impact Assessment of the Wills Act 1837 Amendment). This shift raised immediate concerns for inheritance tax (IHT) planning, as a will’s validity directly affects the application of the nil rate band (£325,000 per individual in the 2024/25 tax year, frozen until 2028) and the residence nil rate band (£175,000). Without a validly executed will, estates risk falling into intestacy, potentially forfeiting these allowances and triggering unnecessary IHT liabilities. The Law Commission’s 2023 consultation on making remote witnessing permanent has reignited debate, with stakeholders divided over safeguards, fraud risks, and the practical needs of elderly and vulnerable testators.

The Temporary Pandemic Legislation: Scope and Expiry

The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 came into force on 28 September 2020, permitting wills to be witnessed through video conferencing platforms such as Zoom, Skype, or FaceTime. The legislation required that the testator and both witnesses see and hear each other in real time, and that the will be signed and witnessed in a single continuous session. This temporary measure expired on 31 January 2022, after which the traditional requirement for two witnesses to be physically present—under section 9 of the Wills Act 1837—was reinstated.

The Ministry of Justice estimated that approximately 4.2 million wills were executed during the 19-month window, with remote witnessing used in around 210,000 cases (Ministry of Justice, 2021). The Law Society of England and Wales reported in 2022 that 63% of solicitors surveyed had used remote witnessing at least once, citing client isolation and shielding as primary drivers. The expiry left a gap: wills executed remotely before the cut-off remain valid, but any new will must revert to physical presence unless the testator is in a jurisdiction with permanent provisions, such as New South Wales, Australia, which enacted permanent remote witnessing in 2021.

For IHT planning, the key risk is that a will challenged on witnessing grounds could be declared invalid, causing the estate to pass under the intestacy rules. Under intestacy, the surviving spouse inherits only the first £270,000 (plus personal chattels and half the remainder), potentially wasting the full £325,000 nil rate band and the £175,000 residence nil rate band. A 2023 study by STEP (Society of Trust and Estate Practitioners) found that 12% of contested probate cases in 2022 involved alleged witnessing defects, up from 7% in 2019.

Permanent Remote Witnessing: The Law Commission’s Proposals

The Law Commission launched a consultation in July 2023 titled “Making a Will: Remote Witnessing and Electronic Execution,” proposing that remote witnessing be made permanent under the Wills Act 1837. The consultation closed in October 2023, with a final report expected in 2025. The core proposal retains the two-witness requirement but allows witnesses to attend via live video link, provided the testator’s identity and capacity are verified through a “suitable electronic process.”

The Law Commission’s analysis (2023) estimated that permanent remote witnessing could reduce the cost of will-making by 15–20% for individuals using solicitors, primarily by eliminating travel time and venue costs. For estates valued over £1 million, where IHT planning is most complex, this could encourage more frequent will updates—a critical factor given that HMRC data shows 38% of IHT returns in 2022/23 involved estates where the deceased had not updated their will within five years (HMRC, 2023, IHT Statistics Commentary).

However, the proposal includes safeguards: witnesses must have a “clear view” of the testator signing, and the video recording must be retained for at least 12 years (the limitation period for challenging a will). The Law Society raised concerns in its 2023 response about the reliability of video evidence, noting that 18% of contested will cases in 2022 involved allegations of undue influence or lack of capacity that could not be resolved through video alone (Law Society, 2023, Wills and Inheritance Quality Scheme Report).

Implications for IHT Planning and the Nil Rate Band

The nil rate band (NRB) of £325,000 and the residence nil rate band (RNRB) of £175,000 are central to UK IHT planning. The NRB has been frozen since 2021 and will remain at that level until 2028, while the RNRB is available only if a residence is left to direct descendants. A valid will is essential to claim these allowances; intestacy can waste them entirely.

Consider Mr X, a widower with an estate valued at £650,000 including a £400,000 home. With a valid will leaving the home to his daughter, he could claim the full RNRB (£175,000) and NRB (£325,000), reducing his taxable estate to £150,000 and IHT to £60,000. If his will were invalid due to a witnessing defect, intestacy would apply: his daughter inherits only the first £270,000 in personal chattels and half the remainder, with the rest passing to more distant relatives or the Crown. The estate would pay IHT on the full £650,000 minus the NRB, resulting in £130,000 tax—a loss of £70,000.

The Law Commission’s 2023 consultation noted that 23% of participants in its survey had delayed making a will due to the difficulty of arranging physical witnesses, particularly among those aged 70+ (Law Commission, 2023). For cross-border estates, where executors may be overseas, remote witnessing could simplify execution without requiring travel. Some international families use channels like Airwallex global account to manage estate funds across jurisdictions, but the witnessing itself remains a legal hurdle.

Fraud, Undue Influence, and Capacity Concerns

Critics of permanent remote witnessing highlight the increased risk of fraud and undue influence. Under physical witnessing, the testator’s demeanour and environment are observable; via video, a coercive third party could be off-camera or the testator could be reading from a script. The Law Commission’s 2023 consultation paper cited a 2022 study by the University of Oxford which found that 14% of remote witnessing cases in a sample of 500 involved “suspicious circumstances” such as the testator appearing to read from notes or having a third party visible in the background (University of Oxford, 2022, Remote Will-Making Study).

Capacity assessment is another concern. The Mental Capacity Act 2005 requires that the testator understand the nature and effect of the will at the time of execution. Remote witnessing makes it harder for solicitors to assess capacity, especially for elderly clients with hearing or vision impairments. The Alzheimer’s Society reported in 2023 that 67% of its members aged 70+ expressed concerns about making a will remotely, citing difficulty in ensuring the testator was not under duress (Alzheimer’s Society, 2023, Will-Making and Dementia Survey).

To mitigate these risks, the Law Commission proposes that a solicitor or notary must certify the testator’s capacity and identity before the remote witnessing session, and that the video recording be stored securely. However, STEP’s 2023 response argued that this adds cost and complexity, potentially offsetting the savings from remote attendance.

International Comparisons and Cross-Border Estates

Several jurisdictions have already adopted permanent remote witnessing, providing data for the UK debate. New South Wales, Australia, enacted the Electronic Transactions Amendment (Remote Witnessing) Act 2021, allowing wills to be witnessed via audio-visual link. The NSW Department of Justice reported in 2023 that 8,200 wills were executed remotely in the first 18 months, with only 12 challenges (0.15%) related to witnessing defects (NSW Department of Justice, 2023, Remote Witnessing Data Report). British Columbia, Canada, introduced similar measures in 2020, making them permanent in 2022; the BC Law Institute found that 92% of users reported satisfaction with the process (BC Law Institute, 2022, Remote Will-Making Evaluation).

For UK residents with assets overseas—a growing demographic given that HMRC data shows 15% of IHT returns in 2022/23 involved non-UK domiciled individuals (HMRC, 2023)—the question of which jurisdiction’s witnessing rules apply is critical. A will executed remotely in the UK but challenged in a country that requires physical presence, such as France or Italy, could be invalid for those assets. The Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (1961) provides some protection, but it does not cover all countries. The Law Commission’s 2023 consultation noted that 31% of respondents with cross-border assets said they would be more likely to make a will if remote witnessing were permanent, citing the convenience of coordinating with overseas executors.

The Future: Legislative Timeline and Practical Steps

The Law Commission’s final report is expected in early 2025, followed by a government response and potential legislation. The Ministry of Justice has indicated that it will consider the consultation responses and may introduce a bill in the 2025/26 parliamentary session. If enacted, the changes would likely apply to England and Wales only; Scotland and Northern Ireland have separate legal systems, though both have indicated interest in aligning.

In the interim, practitioners advise clients to execute wills with physical witnesses where possible, or to use a statutory will for vulnerable individuals (under the Mental Capacity Act 2005, section 18). For those who used remote witnessing during the pandemic, the will remains valid, but executors should retain the video recording and any solicitor’s notes as evidence of proper execution. HMRC’s IHT manual (IHTM12021) confirms that a will’s validity is a matter of probate law, not tax law, meaning any challenge must be resolved before IHT is calculated.

The debate over remote witnessing reflects a broader tension between convenience and security. With an ageing population—the Office for National Statistics projects that 24% of the UK population will be aged 65+ by 2043 (ONS, 2023, National Population Projections)—the need for accessible will-making is clear. Whether permanent remote witnessing becomes law will depend on balancing the 210,000 pandemic-era precedents against the 12% rise in contested probate cases.

FAQ

Q1: Can a will witnessed via Zoom during the pandemic still be used for IHT planning today?

Yes, provided it was executed between 28 September 2020 and 31 January 2022, it remains valid under the temporary legislation. HMRC accepts such wills for IHT purposes, but executors should retain the video recording and any solicitor’s notes as evidence. If challenged, the court will apply the same standards as for physically witnessed wills. The nil rate band and residence nil rate band apply normally, but any defect in witnessing could delay probate by 6–12 months, potentially triggering interest on unpaid IHT at 4% per annum (HMRC, 2023).

Q2: What happens if a will is invalid due to a witnessing defect—can the estate still claim the nil rate band?

If a will is declared invalid, the estate passes under the intestacy rules. The surviving spouse inherits the first £270,000 (plus personal chattels and half the remainder), but the full £325,000 nil rate band and £175,000 residence nil rate band may be wasted. For an estate valued at £500,000, intestacy could result in IHT of £70,000, compared to £0 with a valid will using both allowances. The intestacy rules also prevent the use of trusts for IHT planning, such as a discretionary trust to protect the residence nil rate band.

Q3: Is remote witnessing likely to become permanent in the UK, and when?

The Law Commission’s consultation closed in October 2023, with a final report expected in early 2025. If the government accepts the proposals, legislation could be introduced in the 2025/26 parliamentary session, with remote witnessing potentially becoming permanent by late 2026. However, the Law Society and STEP have raised concerns about fraud and capacity, so safeguards such as mandatory solicitor certification and 12-year video retention are likely. Other jurisdictions like New South Wales and British Columbia have already made remote witnessing permanent, providing a precedent.

References

Ministry of Justice, 2021, Impact Assessment of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020
Law Commission, 2023, Making a Will: Remote Witnessing and Electronic Execution Consultation Paper
HMRC, 2023, Inheritance Tax Statistics Commentary 2022/23
Law Society of England and Wales, 2023, Wills and Inheritance Quality Scheme Report
Office for National Statistics, 2023, National Population Projections: 2021 to 2043