As we’ve discussed in our earlier blog, the law on witnessing a Will has now been amended in England and Wales due to the challenges testators have faced during the COVID-19 pandemic. As a temporary measure, Wills can be witnessed via video until 31 January 2022. The intention is to aid and provide peace of mind to those who have been unable to have a Will witnessed according to the traditional legislation (Wills Act 1837).
The Wills Act 1837
According to the Wills Act 1837, a testator’s signature must be made in the presence of two witnesses who are present at the same time to be valid. In turn, each witness must sign in the presence of the testator. The legislation also states that both the testator and witnesses must have a clear line of sight when witnessing the signatures.
Throughout the COVID-19 pandemic, following these rules became a significant challenge for many due to shielding, self-isolation and lockdown restrictions that prevented individuals from physically being present to perform their duties as a witness or testator. Even with Shires v Glasson (1687) and Casson v Dade (1781) as precedents which tested the word “presence”, it was not any easier to carry out.
At the end of September 2020, an amendment to the Wills Act 1837 came into force which extends the word ‘presence’ to include digital presence, allowing Wills to be witnessed via video throughout the pandemic period. This will be retroactive from 31 January 2020 and will remain in force until 31 January 2022.
The Ministry of Justice (MoJ) provided a list of conditions and procedures on using video technology to witness a Will that cover camera positioning, what will invalidate a Will witnessed remotely and recommended steps to follow. However, some of the key things to remember are that electronic signatures are not part of the temporary legislation and video witnessing is to be used only as a last resort when COVID-19 restrictions make in-person witnessing impossible.
Is there potential for disputes?
Prior to lockdown, Wills were created in an environment where there were strict controls in place and the preparation of a Will was done in a consistent manner in the presence of a Solicitor or Will Writer. The removal of this environment can naturally bring about a cause of concern about the potential for disputes to be raised about the process and ultimately, the validity of the Will. Here are a few common concerns so far:
The MoJ has provided a recommended five-stage process that should be followed when witnessing a Will remotely. This is not a mandatory process so is open to misinterpretation and customisation depending on the circumstances.
The amended law has been backdated to 31 January 2020, which covers several months when there was confusion about how to legally prepare a Will during lockdown. Understandably, there have been Wills created between January and September 2020 where Wills may have been witnessed remotely for someone who has since passed away. Initially, it is likely that their Will was deemed invalid and could now be considered valid.
The amended guidelines allow for original Wills to be sent to each witness for signing however with this comes the risk of numerous concerns being raised about validity, including being lost in transit or fraudulently intercepted, or the process taking too long and the testator passing away before the process is complete.
Most of us have experienced a faulty connection when using video technology. As a result, many are sceptical of having a consistent quality or connection during all remote witnessing procedures. If a connection is known to drop at any point, this can call the validity of the signatures into question.
One critical component of preparing or changing a valid Will is that there is no undue influence by anyone else, which is something that can be monitored and controlled in a typical setting. When done on camera, there is the ability to see everyone truly present and any intimidating behaviour towards the testator, which could give rise to a claim that undue influence took place and that the Will is invalid.
As mentioned above, this option is to be considered as a last resort measure, only if witnesses cannot physically join the testator due to local or national restrictions during the pandemic. Abuse of this option can result in a dispute about whether the Will was signed remotely as a true last resort.
Legal practitioners are either very welcoming of this amended process for their clients or wary of it due to the potential for an increase in disputes, and the list above includes just some of the concerns that have been raised to date. We continue to encourage our partners to exercise all levels of due diligence required in light of the ‘grey areas’ in the process that could be disputed or eventually invalidate the Will.