The Order that Allowed Video-Conferencing for Will-Making
In September 2020, the UK Parliament passed an order that amended the Wills Act 1837, a law that dates back to the Victorian era. The order allowed people to make valid Wills by using video-conferencing or other visual transmission, as long as the witnesses could see and hear the testator (the person making the Will) in real time. This was a temporary measure to help people who were self-isolating or facing lockdown restrictions due to the Coronavirus pandemic. The order applied to Wills made on or after 31 January 2020, and was initially set to expire on 31 January 2022.
The Extension of the Order Until 2024
However, in January 2022, the order was extended for another two years, until 31 January 2024. This was done as a precautionary measure, in case there were any future outbreaks or lockdowns. Some may wonder why the extension of the order was necessary, as the impact of Covid had subsided.
The Implications and Risks of Remote Witnessing
The Ministry of Justice (MoJ) issued a guidance document in July 2020, which explained how to use video-conferencing for Will-making. The MoJ stressed that remote witnessing should only be used as a last resort, and that the traditional method of physical presence was still preferable. Law firms seemed to follow this advice, as a survey by the Law Society showed that only 14% of respondents who drafted Wills since the start of the lockdown had used remote witnessing by the end of 2021. However, the future impact of this minority of cases remains to be seen, as some issues may arise that could challenge the validity of remotely witnessed Wills.
One of these issues is undue influence, which means that the testator was coerced or pressured into making a Will that did not reflect their true wishes. The MoJ guidance stated that the witnesses had to have a clear line of sight of the testator, and that they had to see and hear them sign the Will. However, this may not be enough to prevent undue influence, especially if the testator, witness 1, and witness 2 were in different locations, using a three-way video conference. In such cases, there is a risk that someone else was present with the testator, but out of sight of the witnesses, and influenced them to sign a Will that they did not want to. This would be harder to detect and prove than if the witnesses were physically present with the testator and could follow the strict rules of the Wills Act.
Therefore, remote witnessing may have increased the risks for future probate cases, where the validity of Wills could be contested and it may also have created more problems for others in the long run.
The Potential for More Disputes Over Will Validity
One of the consequences of allowing remote witnessing of Wills during the pandemic is that there may be more cases where the validity of Wills is challenged by disgruntled beneficiaries or excluded relatives. These scenarios could lead to more claims under the Inheritance (Provision for Family and Dependants) Act 1975, or other grounds for contesting the Will.
Therefore, it is very important to record the process of remote witnessing in detail, and to ensure that the testator can see that the Will being signed on their behalf matches their instructions.
The Benefits of Remote Witnessing for Vulnerable Testators
Despite the risks, remote witnessing also had some benefits, especially for vulnerable testators who may not have had any other option to make a valid Will.
The Future of Remote Witnessing
As mentioned above the order that allowed remote witnessing of Wills was extended until 31 January 2024, as a precautionary measure in case of any future lockdowns or restrictions. It is not clear whether remote witnessing will become a permanent feature of the law.
How Tozers Can Help
If you made a Will during the pandemic, using remote witnessing, and you are worried that your Will may be challenged or invalidated after your death, you may want to consider re-drafting your Will, using the physical presence method, as a precautionary measure. Our friendly Wealth Management Team is always ready to help you with your Will, and to advise you on the best way to protect your estate and your beneficiaries. As a law firm, we always strive to stay up to date with the changes in the law, and to tailor our advice to your specific needs and circumstances.
