Section 9 of the Wills Act 1937 sets out the requirements for a valid Will. One of those being, that ‘no Will shall be valid unless… (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and another being that … (d) ‘each witness either attests and signs the Will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness) but no form of attestation shall be necessary.
With the whole country being in lockdown the last few months, and the concerns of COVID-19, a vast number of people have been using this time to prepare their Wills and put their affairs in order. However, social distancing, and those most vulnerable having little contact with others as they self-isolate in their homes, has made it difficult for Wills to be properly witnessed and executed in person.
In order to make the Will signing process easier in the current climate, the government have announced temporary and retrospective (for Wills created on 31 January 2020 onwards) laws to allow the witnessing of wills to be conducting via video conferencing, in a five-stage process as per Government Guidance which can be found at https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing#video-witnessing.
As the new laws and rules surrounding the execution of Wills makes it easier to witness Wills, what are the risks behind this?
There can already be concerns about whether the Testator is under duress, undue influence or coercion when making and signing the Will, given the vast and varied emotions that can be experienced by the Testator and their loved ones surrounding the topic of Wills. No doubt, not being physically present in a room whilst the Will is being executed is only going to increase this concern. Particularly given that we do not actually know who is present in the room whilst the Will is being signed by the Testator, even where say for example you had a camera providing a 360 degree view of the entire room. Even in such a circumstance we still would not ever really know who is behind the door, under the table or through the corridor! It is much easier for an individual to hide from a camera than it is the eyes of someone physically present in the room, that person who would be able to assess the surroundings and the body language of the Testator. These concerns surrounding the validity of a Will on the basis of fraud, coercion and undue influence are likely to increase the number of contentious probate cases we see in the future.
Furthermore, once the Will has been signed by the Testator, the Will then needs to be given to the two witnesses for them to sign. This inevitably will increase the time is takes for a valid Will to be formed, particularly where the Will is being sent to the witnesses by post or even being collected and dropped to the witnesses for those who most vulnerable and those unable to travel. With this there come risks of the Will being lost or damaged in the post and even the risk that the Testator may pass away before the Will is signed by everyone, making it valid.
Given the risks associated with witnessing Wills via video conferencing, this option should be used as a last resort. It is far better to have a professional facilitate the proper execution and production of a valid Will, and no doubt they will already have appropriate safe guarding measures/policies in place to protect Testators and safety measures with regards COVID-19.
The legislation and any relevant guidelines will need to be clearly drafted to avoid any ambiguities and minimise the risk of a currently inevitable increase in contentious probate matters.
Our team have all the best policies and procedures in place to make sure a video-witnessed Wills are valid and completed efficiently. If you would like to discuss this with a member of the team then contact us today on 01753 486777 or firstname.lastname@example.org