The last year has led to substantive changes in our working practices and we are now seeing the unexpected consequences of some of these short term fixes.
The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, had an immediate impact on the work of private client lawyers who had struggled to execute wills whilst complying with the lockdown restrictions. For a Will or Codicil to be valid, in the UK, it must comply in full with the statutory requirements set out in section 9 of the Wills Act 1837 (as amended by section 17 of the Administration of Justice Act 1982). The requirement that that two witnesses are to be in the physical presence of the testator was particularly difficult to comply with during lockdown.
The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020,specifically provided that ““presence” includes presence by means of videoconference or other visual transmission.”, which allowed wills to be witnessed remotely without the previous requirement that the testator and the witnesses were physically with each other. This led to wills being witnessed over Zoom and Skype.
This new legislation will applies to wills made from 31st January 2020 and will remain in place for two years although this timeframe could be extended. Many practitioners had been calling for such changes for years so why are we now seeing an increase in disputes centred on this temporary legislation?
The strict requirements regarding the making and execution of wills are in place to protect people against undue influence and fraud. It was perhaps inevitable that removing or amending these protections would lead the process open to dispute. The Law Society itself was concerned enough to issue guidance for practitioners and has recommended that practitioners treat wills witnessed remotely as ‘holding wills’ and consider re-signing the will once restrictions are lifted sufficiently to allow this to happen.
Guidance on making wills remotely was set out by the Ministry of Justice but any failure to comply with the strict requirements can lead to a challenge to the validity of a will. There are the practical problems that we have all faced when internet connections fail but a real risk is the witnessing not being recorded in line with best practice. The requirement to get the actual will to the witnesses to sign, ideally within 24 hours, can be difficult to comply with and has led to problems for some estates.
We expect to see more challenges to the validity of wills based on allegations that the testator was unduly influenced. When instructions are taken remotely, it is more difficult to prove that instructions were taken in the absence of any other party. A will is invalid if the testator was unduly influenced.
However, the importance of this change to legislation should not be diminished by the increase in disputes. The legislation allows wills to be made in exceptional circumstances and provides comfort and certainty to many. As with all contested estates, those who adhere to the guidelines and can provide evidence are able to respond to such challenges.