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:
- Getting lost in transit
- Being fraudulently intercepted and changed while in transit
- The testator passes away before all parties have signed
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.