Will remote witnessing of Wills lead to more disputes?
Will Remote Witnessing of Wills Increase Will Disputes?
We’ve seen a huge influx in the number of people wanting to make a Will during the Coronavirus pandemic, but many have been finding it tricky to do so. For a Will to be legally valid in England and Wales, it must be signed in the presence of two witnesses. So for people who are shielding or self-isolating, this has been quite challenging.
But, the UK Government introduced legislation that allows people remotely witness a Will by using video conferencing online. This temporary amendment applies to all Wills made after 31st January 2020 up until 31st January 2022.
While we’re welcoming the Government’s flexible response in helping people make their Will, witnessing Wills online could increase the risk of them being contested later down the line.
Our Contentious Probate Solicitors look at remotely witnessing a Will by video and some of the possible challenges it could bring.
How Does the Remote Will Witnessing Work?
- All the parties need to be present in a video conference to witness the signing of the Will. This includes the Testator (the person making the Will) and two witnesses. Both witnesses must be able to clearly see the Testator signing and the other witness.
- The Testator must then show the witnesses the document they’re going to sign, before signing and dating the Will as they watch. The witnesses then verbally confirm that they’ve seen the Testator sign the Will.
- The Will then needs to be given to the witnesses as soon as possible, either by post or in person. The Ministry of Justice advise this to be done within 24 hours, but current delays are understandable given the current circumstances. Until the Testator and both witnesses have signed the Will, it is not legally valid.
- Once the witnesses have got the physical copy of the Will, they must organise another video conference with the other witness and the Testator. Again, everyone must be able to see each other in the video conference. The witness shows the Testator the document on camera before signing it themselves. If both witnesses are physically together at the time of the video conference, they can both sign it at the same time. If not, then another video conference must take place where they repeat the same process as the first witness.
What are the Risks?
As useful as this option is for people during Coronavirus, signing and witnessing a Will virtually does bring its risks, and increases the chance of a Will being contested in the future.
Potential risks include:
- Concerns about fraud and abuse – In a video conference call, viewers can only see what’s included in the video frame, so video witnesses can’t see what’s happening off camera. This means there’s a greater risk of the Testator being put under undue influence by someone off camera
- Technology and connection issues – Technology can be unreliable. If a witness’ video connection suddenly cuts out while the Testator is signing, this could raise concerns about the validity of the Will, as they won’t technically have witnessed the signing. If this happens, the parties might have to go through the procedure again
- Delays in the process – As the Will has to travel between houses or get sent in the post, delays are likely to be expected. This creates a risk to the validity of the Will, as anything can happen before the Will is completed. For example, if the Testator dies or becomes incapacitated during that time, then the Will won’t be legally valid. Other risks include the document getting lost in the post or fraudulent alterations being made to the Will as it’s passed between people
John Lambe is a contentious probate solicitor at Simpson Millar LLP.