Coronavirus update: remote witnessing of Wills. Welcome reform or problems ahead?

As the country continues to ease out of the third lockdown, it seems a good opportunity to reflect on one of the most significant legal changes, in the Private Client world at least, that occurred during the pandemic – the remote witnessing of Wills.

Before the pandemic and the subsequent legislation that followed, the Wills Act 1837 required a Will to be in writing and to be signed by the testator in the presence of two witnesses.

This presented difficulties in a world where physical proximity was discouraged and, in many cases, illegal.

Parliament’s response? The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952, which came into force on 28 September 2020 and presently applies to Wills made between 31 January 2020 and 31 January 2022.

This provides for a Will to be validly executed even when the execution process is witnessed remotely by video link. Signatures must still be added on by both testator and witnesses, providing each party respectively has witnessed the other’s signature (remotely) on the Will.

Whilst this was a helpful and timely legal reform, it must still be considered a last resort in order to avoid a potential will dispute arising. Covid restrictions permitting, we would always recommend that Wills are witnessed in-person in the conventional way.

The risk is that remotely witnessed Wills are at an increased risk of challenge. For example, the recollections of witnesses may be important in a case where the validity of the Will is challenged on the grounds that the testator lacked testamentary capacity. It can be argued that the absence of physical presence is likely to reduce the impression that the witness was able to gain on the testator’s mental capacity at the time of signing.

The same problem may occur for Wills that are challenged on the grounds of undue influence; it will be harder for the witness to adduce whether anybody else was in the room when the Will was signed, evidence of which may be consistent with previous unduly influencing behaviour.

It is suggested that Will disputes will increase over the coming years on the basis of this reform, despite its necessity in the face of the pandemic and lockdown restrictions.

If you would like advice about a will dispute or any type of contentious probate case, please call 01902 424927 and ask to speak to one of our specialist contentious probate lawyers. Alternatively, please e-mail 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 estate disputes.

We also have a team of probate lawyers who can assist if you wish to review you current will or to make a will for the first time.

We offer an initial no obligation telephone consultation for contentious probate disputes and we can sometimes act for clients who want to contest a will or commence an inheritance dispute/probate dispute on a no win no fee basis.