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Will formalities
Under the Wills Act 1837, a Will must be signed by the testator in the presence of two independent witnesses who have no interest in the Will. The witnesses also sign the Will and each state their name, address and occupation. This is an important requirement which is intended to safeguard against the risk of lack of capacity on the part of the testator, forgery or coercion.
The new legislation
The Covid-19 pandemic created huge difficulties in relation to the witnessing of Wills, due to the series of lockdowns and ongoing social distancing measures. In response to this, the Government brought in new legislation on 28 September 2020 which (at least temporarily) amended the Wills Act 1837, allowing for the remote witnessing of Wills. This legislation has now been extended to 31 January 2024.
The legislation allows for Wills to be witnessed via video call. The testator should sign the Will on camera, making sure the quality is sufficient so that the witnesses can see them signing it. The Will is then sent to the witnesses for signature.
What are the risks of remote witnessing of wills?
This reform was welcomed by many, in a time when the demand for Wills increased significantly. Many would say it made it more possible and easier for people to make Wills. However, there is a risk that it may lead to a rise in Will disputes in the future.
Wills that were remotely witnessed could potentially be challenged on a number of grounds. A family member could argue that the testator lacked capacity at the time that the Will was executed, and it may be harder for a witness to accurately recall or evaluate the testator’s mental state or wishes through a video picture. It may be that best practice would be for a medical professional to be present when the testator signs their Will.
Remote witnessing may also lead to an increased risk of coercion as, without the witnesses realising it, there could be a third-party present who is out of view of the camera and placing pressure on the testator to sign.
Further, Wills that were witnessed remotely could potentially lead to challenges based on forgery, as the witnesses may not be able to clearly see the signature through the video picture or recall what it looked like when they received the Will to sign. The witnesses should of course endeavour to see the signature clearly and are at liberty to refuse to sign as witnesses if they cannot do so.
Given the risks, it remains preferable that your Will is witnessed in person, if possible. However, remote-witnessing could potentially be used where this is not possible. We recommend that individuals take legal advice before drafting or signing a Will.
If you are concerned about the validity of a Will, or if you would like advice about an inheritance dispute, a will dispute or any type of contentious probate case, please call 01384 410410 and ask to speak to one of our specialist contentious probate lawyers. Alternatively, please email us at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues you wish to discuss with us, along with your contact details.
We have a dedicated practice team of contentious probate solicitors, covering all areas of the UK (with offices near Birmingham and in Wolverhampton) who are experienced in dealing with all types of contentious probate matters, including challenging a will and probate administration disputes and inheritance disputes.
We also have a team of probate lawyers who can assist if you wish to make a new will or review your current will.
We offer an initial no obligation telephone consultation for contentious probate disputes and we can sometimes offer alternative funding options to act for clients who want to contest a will or commence an inheritance dispute or probate dispute on a no win no fee basis.