Will it or won't it? The virtual witnessing of Wills and the potential for disputes

In response to the challenges of validly witnessing a Will during the COVID-19 pandemic, the government has announced a change in the law that will permit Wills to be witnessed remotely for the next two years.

This is welcome (and practical) news for those who have railed since the start of lockdown against the “archaic” rules surrounding Will execution, and will certainly ease the burden on testators and drafting solicitors alike concerning how to get Wills properly executed in these unprecedented times. However, with the new legislation set to apply retrospectively, and with the inevitable issues that come with the use of video technology, the new legislation will also likely result in an increase in disputes over the validity of Wills executed in this way.

Current legislation

Under the current Wills Act 1837 (the Wills Act), for a Will to be legally valid, the testator must:

• Be 18 or over
• Make it voluntarily
• Be of sound mind
• Make it in writing
• Sign it in the presence of two witnesses who are both over 18 and
• Have it signed by two witnesses, in their presence.

For many years, lawyers have questioned whether the Wills Act is fit for purpose in the twentieth century and it has been well-argued that the requirements for a testator to be in the physical presence of their witnesses, and for all parties to have a clear line of sight of the Will being executed, are not always practicable.

When the UK entered lockdown in March 2020, the challenges of complying with the Wills Act amidst social distancing, self-isolation and shielding were brought to the fore. Despite the Law Society of Scotland issuing emergency guidance on 25 March 2020 confirming that it is “feasible to arrange a video link with the client” to witness a Will, the Law Society of England and Wales (the Law Society) remained of the view that “it is not permitted to witness a Will via video messaging as a witness must be physically present”.[1]

New legislation

On 25 July 2020, the government announced its intention to change the Wills Act to legalise the virtual witnessing of Wills. The new legislation (the Amended Wills Act), which is set to come into force in September 2020, will amend the existing requirement for the testator and their witnesses to be in the “presence” of each other to include a virtual presence as an alternative to physical 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 two instances in which the legislation will not apply are:

1. Where a Grant of Probate has already been issued or
2. The application for Grant of Probate is already in the process of being administered.

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

Potential for disputes

The Law Society has called on the government to ensure the Amended Wills Act is clearly drafted to “minimise unintended consequences and ensure validity”, highlighting the fact that the change in legislation is likely to bring about a number of new reasons for disputing the validity of a Will[2]:

• Virtual witnessing procedure – With no set 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 – With the change in law taking effect from September 2020, but set to apply retrospectively to Wills made since 31 January 2020, and covering a period when virtual witnessing was deemed invalid, disputes in circumstances where steps have already been taken after a person passed away without seemingly leaving a valid will are almost guaranteed.
• Wills in transit – After a testator signs their Will virtually, the Will will need to be sent to the witnesses for signature. The possibility of the will being lost or intercepted in transit, or the testator passing away before reaching the witnesses, would all raise questions over the will’s validity, as would potential claims that the will received was not the will which had been signed by the testator.
• Problems with video technology – The use of video technology has, inevitably, raised concerns. If a connection drops out at any point during a virtual signing, the validity of that signature could be challenged.
• Undue influence - Under the Wills Act, a Will is invalid if it is found that the testator was unduly influenced by another. The inability to see those who remain off camera during a virtual signing could give rise to claims that the testator was unduly influenced and therefore the Will should be deemed invalid.
• ‘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.

Although the government’s announcement has been welcomed by many for alleviating the problems of executing valid Wills during the COVID-19 pandemic, the Law Society’s advice to solicitors to consider discussing re-signing Wills with clients once it is safe to do so serves as a further indication of real uncertainty about how the process will work (and how robustly it can be implemented) in practice – an increase in disputes seems inevitable.[3]

For information about estate and succession planning during COVID-19, please view a recent article here.