Executing Wills In A Digital World

The Wills sector has always shied away from a digital world, but it has taken an unprecedented pandemic to radically shift the mindset into the 21st century.

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.

Consequently, 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.

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, which are backdated to 31st January, 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 absolutely essential in the new evolving Wills landscape.

In a recent ‘Women in Wills event’, hosted by Today’s Wills and Probate, it was 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 which arose 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.

The new law brought about a lot of questions that had not been answered and even more scope for challenging Wills. The consensus was that video Wills should be an absolute last resort if there was no other option and would still be advising their client to have two physical witnesses present and solicitor too when executing a Will.

Penny Wright, partner in the inheritance protection team at Berkshire firm Gardner Leader, also agreed with the risks. She said:

“The delays in the process carry risk. It might take several days to circulate the document and complete the witnessing process. The person making the will might die or become incapacitated before the witnessing process has been completed, so the will won’t be valid.

“Vulnerable clients will still face obstacles. For a person who is shielding, the question of how they convey the will to the witnesses remains a problem. Either they will need to go out of their house to post it; or someone will need to come and collect the document”

Wright adds: “Arguably, it is not necessary to bring in these new laws, because solicitors have been continuing to facilitate the proper witnessing of wills during lockdown, making many home visits to witness clients signing their wills from a safe distance with appropriate safety measures.”

James Antoniou, Head of Wills at Co-op Legal Services commented saying the changes will:

“inevitably create a greater risk of uncertainty about whether a virtually witnessed will has, in fact, been executed properly.

“This, in turn, means that there is also an increased possibility of wills made in this way being challenged in the future. It’s therefore vital that people putting wills in place take the right advice, and ideally from a legal provider which is regulated by the Solicitors Regulation Authority.”

As a Wills writer, will you be using video conferencing to witness execution of a Will as a last resort? 

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