Deryn Fisher is a Solicitor in the Dispute Resolution Department specialising in the contested Probate and can guide you through how to contest a Will. Deryn can be contacted on 01323 434416 or by email firstname.lastname@example.org
During the Covid-19 pandemic, an increasing number of people sought to make wills. But for those who were shielding or self-isolating it was challenging to meet the requirement of having two witnesses.
The Government has now announced a change in the law allowing wills to be witnessed remotely for the next two years as an alternative to a physical presence. This new legislation is set to apply retrospectively.
The use of video technology in witnessing legal documents is untested and likely to result in disputes between beneficiaries and executors as to whether such wills are validly Wills executed.
The Wills Act 1837 states that a testator must be:
- 18 or over
- Making the will voluntarily
- Of sound mind
- Signing in the presence of 2 witnesses, both aged over 18; and
- Signed by 2 witnesses in their presence.
It is the last of these which is creating difficulties in the present pandemic, as the will-maker (testator) may be quarantined in isolation or on a hospital ward where no visitors are allowed.
On entering lockdown in March 2020, the Law Society of England and Wales advised solicitors that a witness had to be physically present to witness a Will.
In response to this issue, the Government announced it would change the law to make the virtual as well as physical witnessing of wills valid. The Amended Wills Act will:
- Come into force in September 2020
- Remain in force until 31 January 2022 and
- Apply retrospectively to wills made since 31 January 2020
(NB: It will not apply where a Grant of Probate has been issued or if the application for the Grant is already being administered).
This is clearly helpful, given the very difficult task of ensuring a will is legally witnessed while the maker is in isolation.
Why contest a Will
Although the new legislation is helpful, there is concern that it may result in difficulties. For example:
- We lack guidance as to how virtual signing should take place. This could result in more disputes that the witnessing does not meet the requirements, particularly if there is no clear line of site to the will;
- The rules are retrospective, so there may be more Wills contested where disappointed beneficiaries previously believed no valid will existed;
- Following virtual signing, a will should be sent to the witnesses for them to sign. Should a will be lost in the post, intercepted or the testator die before it is signed there may be grounds for challenge.
- Should a signal drop during the video link, the will could be open to contest.
- A video link will not show who else may be in the room but not in camera shot, raising concerns about the ability of third parties to exercise undue influence.
- The Government states that virtual signing is intended to be a last resort and where wills can be made in the normal way they should continue to do so. We can therefore expect arguments that wills were signed in this way for convenience or some other motive rather than necessity.
- Counterpart documents – where the witnesses sign one copy and the testator the other – are not allowed due to the risk of undue influence and fraud. However, witnesses may not be aware of this and issues arise nevertheless.
The Amended Wills Act is helpful tool to allow those in unprecedented circumstances to make a will. However, it is yet to be seen what issues will arise in practice and it would be sensible for clients to resign their wills once it is safe for them to do so.