Video witnessing of wills to play a more vital role?

Video witnessing of wills to play a more vital role in new lockdown?

Now that the UK is in another national lockdown, will the legislation around video witnessing of wills mean they become more than just a last resort to practitioners?

When the Ministry of Justice (MoJ) announced in July that they would make the video witnessing of wills legal as a result of the pandemic, there was a mixed reaction that separated the wills and probate sector into two camps. You either loved the idea, or hated it….I suppose it’s a bit like marmite?

According to the UK Wills & Probate Market 2020: Consumer Research Report, Video witnessing of wills would be acceptable to over a third of consumers while over half would be willing to use the MoJ’s online probate portal in the future if they had to deal with straightforward probate. Already, almost a third have used this portal.

The guidance issued by organisations such as STEP, was that video witnessing or ‘video wills’ should only be used as a last resort. But as this was only guidance, people interpreted it as they saw fit, with some using video wills more frequently than others.

Neither way is right or wrong, and as long as people were acting in their client’s best interests, nobody could fault you.

However, with this new lockdown, and restrictions similar to that of March 2020, it got me thinking. Would video wills become more than a last resort for more people in the sector to ensure they were able to document their client’s final wishes.

I reached out to the sector to find out people’s thoughts.

Emily Deane TEP, Technical Counsel at STEP, commented:

“There have been mixed reactions to the new video witnessing measures in the UK however 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 lockdown 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. For those reasons STEP continues to urge people only to use the video witnessing method if absolutely necessary and to follow the available guidance as strictly as possible.”

Ruth Heap TEP, Partner and Head of Private Client at Hillyer McKeown, commented: 

“New lockdown restrictions might result in an increase in video witnessing of wills, or ‘video wills’. While people are increasingly considering this option, I maintain that protecting our clients wishes remains the most important aspect to us, and as such these type of wills must be a last resort. For anyone wanting this service I would recommend checking how essential aspects of the will writing process, such as ensuring capacity, would be handled satisfactorily. No one wants to consider what might happen if badly a executed video will is deemed invalid when it matters the most.”

Rachel Jones, Private Client trainee at Aston Bond, commented:

“In relation to the preparation of Wills, the lockdown does of course pose extra challenges particularly for vulnerable clients who may be self-isolating and therefore find it difficult to meet the signing requirements.  However, having been through a tighter lockdown last year in March, we are now well practiced to overcome these challenges.  For example we saw the use of window signing worked particularly well during the previous lockdown, whereby clients can ask two friends or neighbours to stand on the other side of their window to witness the signing of their Wills allowing the requirements for a valid Will to be met whilst still maintaining shielding from others.  The recent change in the law to allow video witnessing of Wills also assists for the most vulnerable of clients, however we would still only suggest this be used as a very last resort.”

Jade Gani, Head of Wills and Probate at Aston Bond, said:

“I am not surprised that 1/3 of consumers would find video witnessed Wills acceptable – as on the face of things it sounds like a great, modern idea. However, what consumers often do not realise is the risks involved with this approach. For example, they might not appreciate that the video witnessing actually requires at least two video calls before the Will is valid; in between those calls the Wills have to be transported between the Testators and the witnesses, during which time the Wills are not validly executed. If you are shielding and relying on postal systems to transport the Wills, then there could be a delay (of days or weeks) before everything is complete. Should something happen to the Testator in that time, the Will won’t take effect.

“There are other risks too that are extremely hard to mitigate if there is a dispute: how can you be completely certain that someone else wasn’t in the room putting pressure on the Testator? How can you be sure the Testator had capacity and wasn’t being led by someone (even with the best intentions)? Indeed, how can we be sure our video recordings are a suitable enough quality for the Court to accept? Particularly where some people struggle with technology. This alone could cause disputes where there might not otherwise have been any.

“I firmly believe that if all consumers knew about these risks then the figures in the report would look much different. We are taking great care to explain all of the above to our Clients and so far, none have insisted on this format. We continue to see it as a last resort due to the risks involved. We were able to get quite creative during the last lockdown to ensure valid, immediate execution in a safe and distanced format, so I am sure we can do so again this time around.

“With respect to more consumers using the MoJ Probate portal, I welcome this. Sometimes Probates are simple and if the Personal Representatives are confident in doing so, then there is no reason why they shouldn’t deal with matters themselves and save money on solicitors costs. However, I would stress that we have to be mindful using the word ‘straightforward’ because what consumers often think is simple, isn’t always the case and, whilst problems might not occur immediately, they can arise later down the line causing delays, arguments and sometimes even fines or additional tax being owed. I would always recommend that consumer make use of the many solicitors firms who offer a free initial consultation for Probate matters, even when they think it is straightforward, as the professional knows what questions to ask and can flag any potential issues you might not have considered.”

Jenny Pierce, SFE Director and equity partner at Wards Solicitors, commented:

“It’s for each practitioner and firm to assess the pros and risks associated with video witnessing of wills, and I suspect this will also need to be done case-by-case. As a professional working predominantly with older and vulnerable people I remain extremely cautious and maintain this should only be used as a last resort.

“It’s useful to have the option: the temporary legislation which allows remote witnessing of wills does give us greater scope for helping clients make emergency wills where they are in a hospital or hospice setting approaching end of life. It also increases our reach to help those isolating or shielding or people in care homes who are closed to visitors and whose staff are not allowed to act as witnesses.

“However, the issues with safeguarding around assessing capacity and undue influence remain: we cannot recognise signs of abuse or be entirely certain that no one is exerting undue influence off camera.

“There are practical implications too: there may be the need to conduct as many as three separate video conferences to make a will valid. This may lead to higher legal practitioners’ fees as this becomes a more time intensive process. Other considerations and implications include an increased scope for error, the risk of losing the will in the post during the process, or worse: for the will maker to die between the signing and witnessing the will. There’s the issue of getting the will from those shielding to the witnesses (delaying the process further) or communicating with people who have mental capacity but are perhaps limited in their physical capacity.

“Additionally, the law change itself isn’t straightforward. 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.

“One solution could be to see video witnessing as an interim tool and re-do the will signing in person, once it is safe to do so. This should lessen the risk of challenges being made. It takes out the scope for claims after a death that the Will wasn’t properly executed and so far as possible means that undue influence and any capacity issues can be cleared off.

“This law change was made without consultation of professionals and no debate in Parliament. As a profession we have a duty to protect the rights of some of our society’s most vulnerable and as it stands, this law change isn’t robust enough and should be treated with caution.”

Eleanor Evans, Partner at Hugh James, commented:

“It will be interesting to see if the current situation gives rise to an increase in practitioners making use of the new legislation enabling wills to be witnessed by video link.  The guidance from STEP is that this option should only be used in an emergency and should not replace the usual requirement for two physical witnesses.  There are various risks associated with the process itself (such as dependence on the postal service and the potential for mistakes by the testator and witnesses), and a will that has not been witnessed in person could potentially be vulnerable to a later challenge, depending on the circumstances of the case.

“Many practitioners used methods such as outdoor signings at a distance, or through windows, before the video wills measures came into force.  I would expect the use of such methods to continue, with the video link option only being used in a handful of extreme cases.”

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