The evolution of will witnessing in the midst of the pandemic

The COVID-19 pandemic brought about an unprecedented disruption to various aspects of our lives, including the way legal matters are conducted. One significant area affected by the global health crisis is the witnessing of wills.

The legal community faced the challenge of adapting to the new reality while upholding the integrity of this essential legal practice. The early stages of the pandemic compelled legal practitioners to rapidly reassess conventional methods of will witnessing.

Cara Hough, a solicitor from IDR Law stated that isolation during the pandemic and the ability for one family member to have more contact than others led to an “increased suspicion to those left behind”, such as when a will “did not leave an estate equally between children, for example – leading to an “increase in attempts to challenge a will”. She continued:

“The pandemic also saw financial hardship for many. While the direct effects of the pandemic are no longer felt by most, the aftershock is still there. Coupled with the cost of living crisis, brought about by high fuel and mortgage costs, we are seeing an increase in disputes.

Put simply, people need and expect their inheritance to help them cope financially now and into retirement. Any variation on that expectation, by a person changing their will for example, will in all likelihood affect the number of estates being contested.”

Some argue that the relaxed requirements compromise the long-established principles of will execution, potentially leaving room for undue influence or misinterpretation. Conversely, most practitioners have paved the way for the future of will execution and have adapted to change.

Zoom wills and meetings were introduced to allow will instructions to be taken and wills to be signed and witnessed remotely. Adam Kaye, associate for Hodge Jones & Allen said that the benefits of this approach have “somewhat remained”. He added:

“Whilst the online signing of wills (either by the testator or their witnesses) has not really continued, clients largely find that the benefits of conducting the will instruction and follow-up meetings online, much more useful in terms of time and cost – especially when clients are often working from home for a portion of the week.”

The guidance issued on witnessing, and preparing wills remotely, was set out by the Ministry of Justice and the Wills Act 1837 (Electronic Communications) (Coronavirus) Order 2020.

Challenges to wills witnessed remotely or under non-traditional circumstances emerged, potentially leading to discussions surrounding their validity. The England and Wales High Court recently upheld the witnessing of a will through a car window in the early days of the pandemic which led to a discussion around the validity of the will.

Kaye added:

“The demand for wills was intensified by the COVID-19 pandemic and as a consequence so has the risk of disputes arising. It is fair to say that producing a greater number of wills is one factor in the risk of potential disputes but perhaps another cause of this is down to the quality and efficiency of wills prepared remotely.

Most concerning however might be the issue of taking instructions remotely. When instructions are taken remotely, there is also a concern that the testator is being pressured or is subject to undue influence (off-camera) and as a result there is an expectation to see more challenges to the actual validity of the will based on claims of undue influence.”

However, he stated that it is “probably too early to tell with any great uncertainty if pandemic wills are more contentious that pre-pandemic wills”.

Another concern during this time was more people were worried about passing away. Hough said:

“More people were worried about dying – which tends to increase will instructions being given, and no one could go outside. The result? I would hazard an educated guess that more people either chose not to make a will or attempted to make a homemade one.

It took until July 2020 for the Government to introduce legislation that legally permitted wills to be prepared remotely. Initially implemented until January 2022, it was then extended for a further two years. The legal change had retrospective effect, meaning any will created remotely from 31st January 2020 onwards was covered by the legislation.”

A survey conducted by the Law Society at the end of last year found that although the new provisions had been used as needed, solicitors had worked hard to ensure clients could make wills in the usual way. 95% of respondents drafted wills during lockdowns, but only 14% who drafted wills used remote witnessing.

Of these, the vast majority (78%) had either a positive or neutral experience. 58% said they would use remote witnessing if it continued to be an option after the pandemic, 7% said they didn’t know and 35% said they would not.

The legal community has been left with the aftermath of the pandemic period and although remote witnessing has been proven successful, the pandemic aftershock and cost of living crisis has resulted in some disputes.

Former Law Society of England and Wales president I. Stephanie Boyce said:

“Solicitors have bent over backwards to ensure their clients have been able to make valid wills despite the restrictions in place during the pandemic.

Those who have used video witnessing have told the Law Society that it has been a useful option to have, to help vulnerable people set their affairs in order when making a will in the physical presence of witnesses is not possible.

The Law Society continues to take the view that in the longer term the most effective reform of the law would be to give judges powers to decide on whether wills are valid in individual cases. They could then recognise the deceased’s intentions even where they have a will which may not have been witnessed in line with the Wills Act, so their estate is inherited as they intended.”

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