Spike In Contentious Probate Expected Due To Lockdown Wills

Solicitors across the country are preparing for a spike in contentious probate claims due to the confusion surrounding the witnessing of wills during lockdown.

Section 9 of the Wills Act 1837 requires wills to be signed in the presence of two or more witnesses, it cannot be done witnessed by video link, the witnesses are required to be in the physical presence of the testator.

Elizabeth Armstrong, managing director of Darlington-based Latimer Hinks, said:

“There are firms out there saying that they are witnessing [wills] over Zoom and then getting people to sign the papers after lockdown…The risk there is what if the person dies in the meantime, or has a stroke?

“There could be a lot of people with potential contentious probate matters further down the line.”

If a will is contested with a person claiming the will was not witnessed correctly, it will be the people relying on the will that will have the burden of proving that it met the provisions set out in the Wills Act.

John Darnton, Consultant at BDB Pitmans, told us:

“Recent years have seen a substantial increase in the number of challenges to Wills, usually from disgruntled family members, but any suggestion that the recent pandemic may lead to a tsunami of challenges based on a failure of proper execution is probably misplaced.  The execution requirements may seem unduly complicated and onerous but most solicitors preparing Wills at this time will doubtless go out of their way to explain how those requirements can be met, for example by a witness observing signature from a safe distance.”

Lucinda Brown, Partner at BDB Pitmans, comments:

“Homemade Wills will continue to be fertile ground for disputes and we might expect more homemade Wills to have been made during the pandemic due to the difficulties with arranging to see a solicitor in person. Where no solicitor has been involved there will have been no opportunity for clear advice to the testator as to how to ensure proper witnessing of the document which may mean these wills are more vulnerable to attack.”

Do you expect to see an increase in contentious probate due to clients attempting to have wills witnessed virtually?  Let us know on [email protected].

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