Industry Reacts To MoJ Announcement
At the weekend, the Ministry of Justice announced that video Wills that were made during the coronavirus pandemic would be legalised. In the hope of reducing the number of contentious probate cases that could undoubtedly arise as a result.
Although there will be a number of nuances that practitioners will have to be aware of.
Seemingly, back in May, Royds Withy King decided to venture down the route of using popular messaging and video calling software WhatsApp to ensure that people who are self-isolating due to contracting coronavirus are able to create or update their will.
Amanda Noyce, Partner in the Contested Wills, Trusts and Inheritance Disputes team at Royds Withy King, comments.
“We are delighted there could be a change in the law to legalise wills witnessed via video. It is a vital solution for families, and one which we have provided during lockdown to our clients where necessary.
“There has been a sharp increase in instructions for wills since the coronavirus crisis, with people wanting to take steps to put their affairs in order, as the risk played on everyone’s mind.
“In the early days of lockdown, we acted for a very ill individual with Covid-19, taking instructions from him via a WhatsApp video call. Using the video facility, we were able to check that he was alone in the room to ensure he was not being coerced. We then recorded his wishes. A draft will was emailed to him. In a second video call to execute the will, the client instructed the solicitor to sign his will on his behalf, whilst the client watched on the video. Then the solicitor and his wife signed the will as witnesses.
“We had to warn the client that this was the best that could be done in the circumstances and that the will might well be formally invalid: a test case would be required to determine whether the will was in fact valid. In our view it was arguable that the will did satisfy the requirements of the Wills Act, since the will was signed and witnessed in the line of sight of the client – albeit that the line of sight was via video. To be sure, however, we advised that the will should be re-executed in conventional fashion should the client recover. In fact, happily in that case the client did recover and so was able to re-execute his will – although now the new law would assist in any event.
“The introduction of a retrospective law will reassure thousands of people who might be concerned that wills executed during lockdown over a video call would have no legal force.”
It appears the firm were ahead of the time, yet they still came in for some criticism, as it was pointed out, the Wills they were witnessing were valid under the Wills Act 1837.
Professionals have shared their views with us at Today’s Wills and Probate.
Linda Ford, CEO of the Chartered Institute of Legal Executives (CILEx) says:
“At a time of greatly increased demand, our members have told us clearly that social distancing and lockdown have caused significant difficulties with witnessing wills and so the government is right to make this temporary move. Many consumers seeking access to services such as will writing are likely to be particularly vulnerable at this time, and measures to help further support social distancing at this time are greatly welcomed.
“But these changes need to recognise the risks of duress, undue influence and fraud, and build safeguards into any such new regime. Unfortunately, wills can bring out the worst in people and the retrospective nature of the change, whilst providing additional assurances for those who have already made their wills over the lockdown period, could make some cases particularly fraught.
“The Law Commission has long been looking at reforming the underlying legislation underpinning requirements for the execution of wills, including its body of work back in 2017 for reforming the 1837 Wills Act – an Act which is quite clearly now out of date and not fit for a modern society.
“As the pandemic has accelerated the adoption of technology in the law, we urge the government to move swiftly and set up the promised industry working group that will consider the security and technology of electronic signatures, and witnessing them by video. We want the law to adapt and innovate, but it must do so in a safe and measured way.”
James Antoniou Head of Wills at Co-op Legal Services says:
“We welcome these changes from the MOJ in order to temporarily help people who may otherwise be unable to execute their wills due to COVID-19.
“However, these proposals should also be approached with caution, as they 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.”
Michael Culver, Chair of the Board at Solicitors for the Elderly (SFE) commented:
“We’re glad that the Ministry of Justice (MoJ) has made witnessing via video conferencing an option in these highly unusual circumstances, however it should only be used as a last resort. As a legal profession, this change does bring about new concerns when it comes to safeguarding clients.
“There are the obvious safeguarding issues that could cause problems, especially when it comes to looking out for undue influence and coercion. For example, it will be harder to ensure the testator isn’t being coerced by someone else in the room, if you’re unable to see behind the camera.
“The law change also isn’t straightforward, which means that 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. The amendment also doesn’t allow counterparts to be used, which means that the will could become lost in the post, and also if your client is vulnerable and shielding they have to consider the logistics around actually posting the will. This can cause delay and if they were to die before the final witness signs the will it will not be considered valid. All of this leaves the will open to disputes later down the line.
“With the potential issues around safeguarding, and the intricacies of the law change, it’s now more important than ever that consumers choose a lawyer who is specially trained in elder client law to protect their loved ones. One way to do this is by looking out for specialist accreditations, like SFE (you can find an SFE accredited lawyer in your area by calling 0844 567 6173). With this unprecedented change in the law, we’re urging those in the legal profession to ensure they are still protecting the rights of some of our society’s most vulnerable.”
Jade Gani, Head of Wills and Probate at Aston Bond, said:
“For exceptional cases, where the Testator is isolating or particularly vulnerable to Covid-19, then the change in legislation could quite literally be life-saving for them. No matter how many precautions you take, being physically present for the signing of Wills is (in the current climate) a risk to both the Testator and the witnesses, but this reform eliminates that risk. That being said, I do believe that this is something which should only be used after all of other options have been exhausted because, again, no matter the lengths you go to in order to ensure there is no undue influence, there simply isn’t a way to be completely certain there isn’t anyone else hiding behind the screen. So it is a fine balancing act and one which the professional must weigh with the Testator’s thoughts and individual circumstances. Recording the signing will be crucial in mitigating future claims. Currently the change is set to expire on 31 January 2022 and I believe that the chance of it being renewed thereafter depends largely on any increase in litigation, we are no doubt going to experience.”
Anthony Belcher, Director General at the Society of Will Writers, wrote on LinkedIn:
“Slowly but surely dragging will writing into the 21st century. Going to need clear and thorough guidance if it’s actually put into use though!”
Writing on LinkedIn, Chair of The Law Society Wills & Equity Committee and Head Of Trusts & Estates at Talbots Law Ian Bond warns that practitioner’s processes must be in line with the guidance provided:
“A lot of hard work from very dedicated people to make this modest change but still protect elderly and vulnerable clients. It is detailed and has retrospective effect but not all video witnessed wills that have been made may be valid. I have seen some firms posting on LinkedIn of their method that will not be valid under these proposals. Further guidance will come from Law Society, but main takeaway is if you can follow the current processes to make a valid will then do so. Make good and detailed file notes if using video conference technology to make wills with clients and record everything.”
Emily Deane, Technical Counsel at STEP also urges caution when considering the use of video witnessing:
“We are delighted that the Government has removed the need for physical witnesses however video links should not be considered a substitute for witnessing via the conventional method. They are for use in an emergency when conventional witnessing is impossible and extreme caution is required when taking this course of action.”
Heledd Wyn, Associate Director at Greg Latchams, said:
“It is a short lived change to deal with immediate issues of Covid-19, but does mean that a long overdue look at how wills are signed etc is addressed sooner rather than later.
“The world has changed a lot since 1837 & extremely rapidly in the last 6 months so any review/update has to be good news!”
Kerry Wigg, Consultant Solicitor, said:
“STEP has issued a briefing note on 25.07.20 and Guidance on this issue and my understanding is remote witnessing is not intended to be a substitute to the conventional method of witnessing Wills and should only be used in an emergency when conventional witnessing is impossible and extreme caution is required when taking this course of action. Given the scope for abuse of using video witnessing, personally I think this approach is sensible.”
What are your thoughts?