The COVID-19 pandemic understandably led to an increase in people creating Wills, however the need for social distancing, coupled with the desire to create the Wills urgently, created a number of problems.
A particular difficulty came from the need for Wills to be signed in the presence of two witnesses who must sign the Will (as required by the Wills Act 1837), and for the parties to also comply with social distancing rules prevalent at the time. Given a beneficiary should not witness the Will, it would of course be unlikely the witness would be from the same household as the person making the Will.
In September 2020, the Government introduced a temporary reform to the Wills Act 1837 which allowed for a Will to be validly witnessed by someone via a video conference rather than having to be in the same room. The change was retrospective, applying to Wills created since 31st January 2020 and will continue to apply to Wills created until January 2024.
However, as there were no changes to the other rules in respect of Will formalities, there were a number of practical difficulties for those trying to use this process. The rules in respect of electronic signatures and use of counterparts were not changed, meaning that the testator and witnesses all had to physically sign the same Will. This would mean that at least two video conferences would need to take place in order for the Will to be signed by all parties in the ‘presence’ of each other.
The Will itself, of course, would not be valid until the last witness has signed it which, due to the need to post the Will several times and arrange video conferencing, might be a few weeks after signed by the testator themselves.
Issues can also arise where it is not clear if the witnesses have actually seen the testator sign over the video call or indeed whether any changes were made between signing by the various parties.
In practice, if a Will is signed by the testator and two witnesses, there is a presumption it has been correctly executed, however this will not likely apply in cases of remotely-witnessed Wills unless the Will itself details that it was remotely witnessed.
There are also concerns that remote witnessing of Wills may lead to greater instances of undue influence, lack of capacity, or a lack of knowledge and approval of the contents of the Will by the person making it. These would all be grounds for setting aside the Will.
At RHL Solicitors, we have experienced professionals who will be able to help you through this process with care, expertise and easy to understand advice.
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If you are concerned about the circumstances in which a Will was created during the COVID-19 pandemic, the specialist team at RHL Solicitors can help you determine if there are valid grounds for challenging its validity.
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