Witnessing Wills In A Covid-19 World
As the legal profession is aware, under current UK law, for a will to be valid it must be signed by the testator in the presence of two independent adults. However, there are a number of discussions taking place looking at the way in which the rules around wills should be interpreted due to the Covid-19 pandemic.
It is true that lockdown has complicated the wills process, and this continues to be a challenge, even with restrictions beginning to lift. We’ve seen lawyers interpret the law in a number of ways to accommodate the restrictions, but still abide by the letter of the law, i.e. witnessing wills through a window. However, some people have also been trying to get around the issue by using technology and having their witnesses watch them sign their will using video conferencing software, such as Zoom. Unlike witnessing a will through a window, video conferencing services mean that a witness is not physically present, and so wills would not be valid.
With the confusion around the legality of wills made during lockdown, some media outlets are reporting that the Ministry of Justice is looking at a blanket validation of wills made from January 31st, 2020, to ensure wills made via video conferencing during lockdown are legally binding. We’ve also seen Gina Miller, with the support of Baroness Kennedy, campaigning for the rules around the execution of wills to be relaxed during the current pandemic, including allowing wills to be made verbally via video, as well as with a digital signature.
It is imperative that the legal profession moves with the times, and I certainly agree that we need to look at the law covering wills, considering we’re using the Wills Act of 1837. Nonetheless, there are a number of ways in which witnessing wills without being physically present could cause problems.
One of those being that witnesses aren’t able to see if there’s anyone else in the room or behind the camera influencing the testator. This is especially pertinent right now given that older and vulnerable people have been shielding for over three months, which can significantly impact someone’s mental health. If this individual then decides to change their will to leave everything to a family member who has been supporting them through lockdown, there is a huge risk of a will objection from another family member being upheld, if it can’t be proven that the testator wasn’t under undue influence or had full mental capacity when making the will.
There is also the issue that could arise as a result of the technology utilised. The global pandemic has demonstrated to us more than ever before, how technology can enhance our personal and working lives. Nonetheless, we all know how quickly technology evolves, which means lawyers could be in with problems reading the wills further down the line, if they’re hosted on digital programmes. I’m currently dealing with a will dated from 1995 – if that had been on a 3 ½ inch floppy disk (the most up to date technology at the time), my team and I would be facing a real struggle to access the document nowadays.
Fundamentally, the blanket validation of wills made via a video conference, as has been suggested, is very concerning for us at Solicitors for the Elderly (SFE). In order to protect the older and most vulnerable individuals in our society, each case should be decided on facts and merits. Giving courts the power to make a blanket validation would not get rid of the chaos but create even more.
While it may be more difficult than ever to help clients create a will, it’s vital that we, as a profession, find ways to work around the restrictions safely, while still protecting the rights of some of society’s most vulnerable, for example having the document witnessed at a distance outside, or at one metre plus with PPE.
We’re calling on the profession to ensure that practices put in place to abide by social distancing guidelines still safeguard the UK’s elderly and vulnerable. And that we don’t back a sweeping validation of video wills, but instead consider them on a case by case basis.