It has taken an unprecedented pandemic to radically shift the Wills sector to adopt digital technology to evidence the execution of testators’ last wishes.
The Wills sector has always shied away from a digital world, but Covid-19 has changed the mindset into the 21st century as this week saw The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952 come into force – amending s9 of the Wills Act to permit live video “presence”, retrospectively from 31 January 2020 and temporarily to 31 January 2022 in England and Wales.
Many other documents, including deeds and discharges can now be executed electronically but until recently the way a Will is signed and witnessed by two people had been set in stone for the past 183 years.
But the ‘Lockdown’ soon changed the 183-year-old rules on witnessing Wills as it urgently prompted the Government to update the current archaic rule in line with the extraordinary times, we all now live in.
Earlier in September a Statutory Instrument (SI), was laid in the House of Commons which will enable the legalisation of the video witnessing of wills to come into force.
The new law will significantly alter the Wills Act 1837, which requires two witnesses to be in the physical presence of the testator. However, the new rules will allow the execution of a Will to be carried out through video. After the Will is signed by the Testator, it is then posted to the two witnesses to sign through video conferencing too.
However, the reform has caused a stir amongst professionals arguing it is unnecessary and potentially could cause a contentious probate surge. But some professionals believe the reforms are long overdue and support them and are essential in the new evolving Wills landscape. It has also been argued that it presents a huge risk in relation to vulnerable clients in regard to capacity/mental health issues and opens the door to Wills being challenged later.
Another concern was the time between the Testator signing and witnessing the Will and the witnesses receiving the signed Will in the post. It was felt it posed risk in terms of fraud and questioned whether the Will would be valid if the Testator died before the witnesses signed it.
Today’s Wills and Probate asked experts in the field the following questions:
• Will you be using video conferencing to witness execution of a Will as a last resort?
• Are you finding that your clients are insisting on video Wills because of convenience?
• Do you think the reform presents a huge risk? In your opinion, what are the risks?
• Do you think there will be more disputes/challenging of Wills because of the new law change?
• What proportion of Wills do you think will be done by this? Do you think this will cause more homemade Wills?
Sue Ioannou, comments on using video conferencing as Chair of Institute of Professional Willwriters (IPW). She said:
…….”We have informed our members that this is an option to be used in certain circumstances and in fact, I actively lobbied the MoJ on behalf of the IPW to get this law changed.”
Sue Ioannou further adds personally her view on execution of Wills using video conferencing:
“Whilst it is only a temporary measure, designed to get us through the pandemic, it can be very useful where you have elderly or other vulnerable people who are shielding at home and it is not advisable for them to have any contact with people, even with social distancing measures in place, as there is always a slight risk if someone is particularly vulnerable. I have used it once for an elderly, housebound, 91 year old man , where his daughter helped him set up Zoom to facilitate the meeting. I do share some concerns about the time it takes for the Will to come back in the post, especially now as the post has been very sporadic in North London where I am based, but on the whole that is settling down. I did identify another concern in the case I had; when the Will came back from the client, I arranged the Zoom meeting with the client so he could see me and my assistant witness it, but it occurred to me (although this didn’t happen) that if something happened to one of the witnesses in between them seeing the testator sign and the Will being available for them to sign as witness, it would mean the testator having to sign again. So I think the message is clear that it should only be used as a last resort.
“Although many clients are aware that the law has been relaxed, the ones that are aware do not always appreciate that it is temporary, but there are many that are not aware of the relaxation at all. Personally I have not had many clients ask to use this method and from speaking to IPW members this seems to be the case amongst our membership. Consequently I do not think this relaxation will mean an up surge in homemade Wills because dispute publicity, my experience is that not many of the general public actually know about it.
“One of the reasons the government gave for not wanting to relax the rules was the possible risks involved. There is the risk as mentioned of the Will not being completed effectively due to either the testator dying in between him signing and it getting back to the witnesses or something happening to the witnesses. The Wills Act 1837 section 9 clearly states that the Will shall only be valid where the testator and the witnesses have signed the Will in each other’s presence. My conclusion therefore would be that if the witnesses were unable to sign in the visual presence of the testator because he had already died, the Will would be invalid. There are also risks of the Will getting lost in the post and potentially being intercepted and either concealed or changed fraudulently, which is why the IPW is advising our members to only use as a last resort solution.”
Jade Gani, solicitor and Head of Wills & Probate at Aston Bond said:
“We will not be using video conferencing to witness Wills unless it is absolutely a last resort, because we strongly feel that it is too risky to rely on. There are some concerns about assessing capacity and undue influence, of course, but the savvy amongst us have implemented techniques to help reduce a great deal of those risks to a minimum. Our main concern is the time span between the Testator signing the Will and the witnesses also signing; no matter how brief this period is, a few hours or a few days, that is time spent without an up to date, valid Will in place and there is absolutely no way to reduce this risk to an acceptable level for us. Thankfully, we haven’t had any Clients who have insisted on this way of signing Wills.
“If the pandemic has taught us anything it is the importance of community spirit and helping each other; the slight inconvenience to witnesses usually isn’t difficult to overcome together. I also think it might inadvertently give an impression to a lay person that the requirements for signing a Will are being relaxed generally, thereby encouraging more homemade Wills. DIY Wills invariably raise disputes, but it also increases the risk that the Will is invalid, which in turn leads to the Intestacy Rules taking effect; this usually is not the most tax efficient option or a far cry from the Testator’s wishes. As a result, I do think that more Estate disputes will arise and it could prove hard to defend these cases if every step isn’t followed to the exact letter of the law and meticulously documented.”
Seb Shakh of Willsuite commented. He said:
“If other options are not available (or safe) then it is absolutely acceptable to use video conferencing to ensure the client can have their wishes fulfilled.
“As forward-thinking providers, we built an integration with video conferencing provider Zoom at the start of the pandemic which saw a sharp uptake within our will writing software, WillSuite, to conduct client meetings remotely. From feedback we’ve received so far, many businesses have found a remote instruction taking process much more time and cost effective without reducing their clients’ experience. However, I don’t believe that a remote execution process is any more convenient than traditionally executing a will in person.
“It would be careless not to pay attention to the new risks that this may introduce however, that if the video conference is recorded and correctly follows procedures and best-practices this could add weight against any potential contest of beliefs that the will was executed or understood incorrectly when compared to the traditional method, especially where Witnesses may have predeceased the Testator.
“A typical Larke v Nugus request shows that contests will aim for the weak links in the chain. If the witnessing is understood as being via video conference, and given that many are still unfamiliar with the process this may be an opening to further investigation, The Society of Will Writers and other organisations have recently published some excellent articles on the dos and don’ts of video execution which I would highly recommend.
“If anything, having this option available may reduce the number of people writing their own wills as a result of being unable to be physically present in front of an advisor. As it is still new legislation the numbers of wills executed remotely will be extremely low, because of concerns by professionals around liability.”
Emily Deane, Emily Deane TEP, STEP Technical Counsel said:
“There have been mixed reactions to the new video witnessing measures in the UK. The majority are pleased that the government has eventually acknowledged that an emergency response was necessary. People who were forced to make a will in this way during lockdown or isolation will be incredibly relieved that it will be upheld and, of course, we still have people in isolation who will be reassured that they can go ahead and make a valid will now if they have no witnessing options. Not everyone has access to laptops or mobile phones with video facilities, which would exclude a small demographic of the population, but we hope it can work for the majority.
“However, from a legal perspective, there are concerns. During the video-witnessing process it is much more difficult to assess the testator’s capacity, and undue influence could be asserted off camera, which needs to be considered seriously. There will likely be an increase in disputes as this method becomes more commonly used; the will could be lost or intercepted in the post before it has been witnessed; and, of course, there is the possibility that the testator could die before the witnessing process has been completed. The difficulty is that, at present, there is no UK case law to look to for guidance. Even when case law is available, there are always nuances to individual cases and it can be very difficult to predict the outcome of a dispute in advance, which is the main reason why STEP is urging members to exercise extreme caution and only use this method if it is absolutely necessary.”
Michael Culver, Chair of the Board at Solicitors for the Elderly (SFE), commented:
“Whilst we’re glad that the Ministry of Justice has made witnessing wills via video conferencing an option in these unusual times, it should only be used as a last resort.
“Using video conferencing can bring about several concerns when it comes to safeguarding clients. For example, a big part of assessing capacity and understanding is by looking at body language, and this can’t be evaluated very well on video calls. It’s also more difficult to look out for undue influence and coercion because you can’t be sure of who else may be in the room, off camera.
“Not only are there safeguarding issues, but there are also practical limitations. You may need to conduct as many as three separate video conferences to make a will valid.
“The law change isn’t straightforward and there is the potential for issues to arise when it comes to the interpretation of the law, which could leave some without legally binding wills and is likely to cause more disputes in the short term. However, firms are being advised to re-do the will signing in person, once it is safe to do so, and this should lessen the risk of challenges being made.
“We are letting clients know that video conferencing is an option, but so far, all of my clients have found alternatives such as window witnessing.
“When considering video wills, professional advice is needed to ensure all formalities are correctly complied with. With the potential issues around safeguarding, and the intricacies of the law change, we’d urge those in the legal profession to ensure they are still protecting the rights of some of our society’s most vulnerable.”
Daniel Wilson, partner at W H Matthews & Co further commented:
“We have no immediate plans to use video conferencing to witness execution of Wills given the very significant risks involved. To date none of our clients have requested that they execute their Will by video link for convenience.”
“Whilst it is timely to review the execution of Wills given that the requirements are contained in an act passed over 180 years ago one should not forget that the process has largely worked well and the special requirements relating to the execution of Wills existed for very good reason. The new changes open up significant potential for disputes and claims.
“Yes, it seems to me inevitable that any relaxation in the requirements for executing Wills can only lead to an increased number of disputes and greater risk of fraud.
“For the foreseeable future I believe that the number of Wills executed remotely under the new law will be extremely small.”
Charity Consortiums and representatives also joined in the discussions and gave us their views.
Rob Cope, director of Remember A Charity added:
“With over 100 people across the UK leaving a gift to charity in their Will every day, charitable Will-writing is becoming increasingly popular and it’s all the more vital now while charities are facing critical funding shortages linked to the pandemic. Ultimately, the more accessible the UK Will-writing environment becomes, the easier it will be for people to leave a gift in their Will, but it’s essential that there is always sufficient rigour and safeguards in place to protect the public and ensure their final wishes will be met.
“There are few that would argue with the fact that the process of Will-writing in the UK needs updating. At Remember A Charity, we see video witnessing as a significant and welcome step to make Will-writing more accessible in covid times. However, we’re conscious too that this decision brings in new areas of risk when it comes to issues such as undue influence and fraud. So, in these initial stages at least, we’d view it as a last resort. In other words, for those that can’t have their Wills witnessed in person as they are isolating or for other reasons, this route may well be ideal. But, it won’t be right for everybody.
“We’d encourage anyone writing a Will to seek professional guidance and support about the best route for them. A professionally written Will is invaluable, helping to ensure that people’s final wishes will be met, and that they can include all those things that truly matter to them; family, friends and good causes alike.”
Paul Browne, legacy consultant panellist from Legacy Link commented on whether he would be using video conferencing to witness the execution of a Will as a last resort. He said:
“No, it is still easily possible to arrange proper in person execution even under strict lockdown with a little care. I executed 2 DoV’s in the lockdown period with a notary.”
On whether clients are insisting on video Wills because of convenience, Browne also said:
“Yes, there is no real assurance in the requirements of it being a free and willing exercise by the legator, i.e. who is actually in the room and the danger of coercion and knowledge of what is being signed is a real problem”
Browne further added on the point whether he thinks there will be more Will disputes due to the new law, he said:
“Yes, undoubtedly it opens up so many avenues of doubt and challenge. Who is checking capacity at the point of execution, knowledge and approval?”
Tracey Geeves, legacy consultant panellist from Legacy Link also commented on whether she thinks the reform presents a huge risk. She said:
“Firstly, in the current situation I do think the overriding principle of the reform is good if it allows people to still execute a Will/Codicil and the only alternative would be a homemade Will that does not properly meet any requirements, or to have no Will at all. I do however hope that the new rules will only be used in the minority of cases.
“Having said that, I do have concerns that there are not adequate tests to check the Testator’s capacity and the video format is more open to undue influence. It would be easy for someone to be in the room, out of shot of the video, putting pressure on the Testator and no one would know. There is also a risk that it takes longer for a Will to be fully executed, for example if the Will needs to be posted to witnesses to sign, and you could end up with a partly executed document if the Testator dies in the interim.”
Geeves agreed there will be more Will challenges because of the new law change. She said:
“Yes, unfortunately I think it will be easier for a Will to be challenged. In the normal way with a professionally drafted Will, there are often Will file notes or Will drafter can provide evidence to confirm that the deceased had knowledge and approval of the Will, had the required capacity or ensure that the instructions have come from the Testator. The evidence that the charities usually rely on to support our case will be missing with video Wills and therefore I tihnk that it will be harder for us to defend challenges against video Wills (assuming we want them upheld).”
Geeves felt it was difficult to know the proportion of Wills she thinks will be done by this and whether it will cause more homemade Wills. She added:
“I would like to hope that video Wills are an exception, however for lots of people, they will see this as an easier and potentially cheaper way to execute a Will. No need to bother with trips to the solicitors during work hours etc! I do not know how widely the new reforms have been publicised and how aware the general public are about the changes with so many other major stories in the news, so it is difficult to answer.”
Brad Greis, legacy consultant panellist from Legacy Link further added his view on whether he thinks the reform presents a huge risk. He said:
“….leaving aside any issue of capacity or undue influence, there is the problem of the technicalities of the Wills Act not been complied with and the Will being ruled invalid because of this.”
