A virtual challenge

Legal Posted 15/09/20
Virtual Wills during the coronavirus pandemic may bring about new disputes, writes Emma Salmon, Solicitor – Contentious Probate and Trusts, Whitehead Monckton.

When the UK entered lockdown in March 2020, it brought with it the challenge of validly executing Wills while complying with rules on social distancing, self-isolation and shielding, as the testator and their witnesses were required to be in the physical “presence” of each other.

The challenges were heightened by the fact that the pandemic will have increased the number of people wanting to make or change their Wills. While many people will instruct a Solicitor to draft their Will, social distancing may have seen more people attempting a home-made Will.

On 25 July 2020, the government announced its intention to change the Wills Act 1837 to legalise the virtual witnessing of Wills. The new legislation, which is set to come into force in September 2020, amends the existing requirement for the testator and their witnesses to be in the physical “presence” of each other to also allow a virtual presence.

The Amended Wills Act will remain in force until 31 January 2022 and will apply retrospectively to Wills made since 31 January 2020 (the date of the first registered Covid-19 case in England and Wales).

The amended legislation remains complex, and the government has emphasised that virtual witnessing should be considered a last resort. Where a Will can be witnessed in the physical presence of two witnesses, that should be the chosen course of action.

The Law Society has called for the Amended Wills Act to be clearly drafted to “minimise unintended consequences and ensure validity”, highlighting that this change in legislation is likely to bring about a number of reasons for disputing the validity of a Will:

  • Undue influence – A Will is invalid if it is found that the testator was unduly influenced by another. The inability to see if someone is off the main camera shot and physically present during a virtual signing could give rise to claims that the testator was unduly influenced and therefore the Will should be deemed invalid.
  • Wills in transit – After a testator signs their Will virtually, the Will needs to be sent to the witnesses for signature. The possibility of the Will being lost or intercepted in transit, the testator passing away before the Will reaches the witnesses or the Will received not actually being the Will that has been signed by the testator could all raise questions over the Will’s validity.
  • ‘Last resort’? – The government has emphasised that virtual witnessing should be considered a last resort and, where possible, the testator and their witnesses should be in the physical presence of each other. It could therefore, be that the validity of a Will is disputed with regard to whether a virtual signing was truly a last resort.
  • Virtual witnessing procedure – With limited guidance on the procedure for carrying out a valid virtual Will signing, arguments that the signing did not comply with the requirements of the Amended Wills Act (for example, if the testator and witnesses did not all have a clear line of sight of the Will on their screen) could be raised.
  • Retrospective application – The amended legislation is taking effect from September 2020, but will apply retrospectively to Wills made since 31 January 2020. This will cover a significant period when a virtual Will was deemed invalid, no guidance was provided and as such it is likely that not all required procedural steps will have been taken.
  • Problems with video technology – The use of video technology has, inevitably, raised concerns. If the internet connection fails at any point during a virtual signing, the validity of that signature could be challenged.
  • Evidence – The guidance recommends that the virtual signings are recorded. In the absence of this, the evidential proof may be minimal.

While the Government’s announcement has been welcomed by many for alleviating the problems of executing valid Wills safely during the Covid-19 pandemic, there are likely to be various adverse consequences to this, including a rise in claims of Wills being invalid.

If you have concerns over the validity of a Will or wish to make a new or updated Will, please contact us on 01622 698000

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