Virtual Will witnessing: Are we at risk of seeing more disputed Wills?

In August, we published a blog on the changes being made to the Wills Act 1837, which prescribes how Wills are to be created in the UK. These changes are have now taken effect, so how do professionals feel about the amendment? They’re quite torn.

Traditionally, Wills had to be signed in the presence of two witnesses, each with a clear line of sight of the signature. During the COVID-19 pandemic, this became difficult or impossible for most people who were locked down, shielding or self-isolating. In search of a solution by Will Writers and private client Solicitors, the word ‘presence’ was challenged. It has always meant a physical presence, but what about a virtual presence? The Ministry of Justice (MoJ) recognised the need for flexibility given the unprecedented situation we all faced and has now temporarily amended the law to allow for Wills to be witnessed remotely using video technology, if necessary. This took effect at the end of September 2020 but will cover all Wills created between 31 January 2020 and 31 January 2022.

While there is a list of conditions and procedures from the MoJ, there is still cause for debate about how to address some of the gaps in the guidance or concerns about the potential for fraud, all amounting to the potential for an increase in Will disputes.

Let’s take a closer look at some of the more common concerns:

• Wills in transit: One significant concern raised relates to the risks involved during the transportation of the Will. During virtual witnessing, the amended guidelines state that the original Will must be delivered to each witness within 24 hours (or as soon as possible) after the previous signature was made but that comes with three significant risks, any of which would invalidate the Will:
1. Getting lost in transit
2. Being fraudulently intercepted and changed while in transit
3. The testator passes away before all parties have signed
• Undue influence: Another key concern when preparing a Will is ensuring that the testator is not under undue influence to create or amend their Will. This can be monitored when done in person, but virtually, it can be difficult to ensure this is not taking place out of the camera’s view. This can automatically invalidate a Will if proven.
• The process: As mentioned above, the MoJ has outlined a recommended five-stage process that should be followed when choosing to witness a Will virtually. However, it clearly is a recommendation, which could lead to misinterpretation or inconsistency in following the steps.
• Dangers of backdating the law: Even though it came into force in September 2020, we now know that any Wills created via video starting on 31 January 2020 will be recognised as valid. There were reports of testators using applications such as Zoom or FaceTime to witness Wills during lockdown when no other options were available, however, prior to the announcement, the Will would have been deemed invalid. If those individuals have since passed away, this could confuse the administration process as a Will once considered invalid is now considered valid.
• Unstable video connections: Video quality and stability is not always consistent, which raises concerns about poor connections impacting the process, opening the door to disputes over the validity of the Will.
• A measure of last resort: The MoJ has also stated that this virtual witnessing procedure must only be used as a last resort when local or national restrictions during the pandemic make it impossible to witness safely in person. Many welcome this option and will follow the guidelines as stated, however, it is also likely that people will want to abuse this use of technology when in-person witnessing is a feasible option. This violates the guidelines and, therefore, can be used as an argument for someone wanting to dispute the validity of a Will.

These are just some of the concerns about the new law that have been raised to date. It will be interesting to follow developments on this topic to track the rate of contested Wills, further refinement of the guidelines to help to address the concerns or simply the uptake in using video technology to witness Wills.

In the meantime, we urge our Will writing partners to continue being extra diligent when utilising this process in light of the potential for an increase in future disputed Wills.