The government has announced a major statutory change to the way in which Wills can be witnessed in the UK. The amendment to the Wills Act of 1837 has been made in the form of a statutory instrument and comes as a response to the pressures of the coronavirus crisis. It will enable testators to make valid Wills by “videoconferencing or other visual transmission”.
Since the passing of the act, nearly two-hundred years ago, Wills in the UK have always required two witnesses to be physically present to witness the testator's signature and to provide their details – even during times of national crisis such as the second world war. The statutory instrument will have effect until 31 January 2022 at which point it may be extended if required.
However, there are real concerns that the measure could lead to an increase in fraud and undue influence and, as a consequence, an upsurge in COVID-era disputed probate claims.
In fact, in a move that may only serve to complicate matters further, the government has announced that the amendments will be backdated to 31 January 2020 (the day of the first confirmed coronavirus case in the UK) so that any video Will made during the period of lockdown, social distancing and self-isolation can be enforced.
Noble ambition but a lack of clarity
Official government guidance says that video-witnessed Wills must only be used as a last resort and that physical witnessing of Wills should still take place whenever possible.
However, there is no clear guidance setting out situations when remote witnessing is suitable. Furthermore, there are concerns that in making video Wills many testators will eschew legal advice and potentially risk the integrity and clarity of their Will in the process.
Video Wills – not as easy as they sound
COVID-19 has brought the issue of Will writing and Will validity into stark relief. The fact that the virus does not discriminate means that many people have made Wills for the first time and possibly while in a state of panic or ill-health, while the more than 40,000 deaths recorded have resulted in loved ones being forced to deal with probate at a time when much of society is effectively on hold.
Yes, witnessed video Wills are undoubtedly a more accessible and adaptable approach to Will writing but the new rules may not be easy to follow. The fact is that witnesses still need to provide their details in ink and this must happen while the parties are all on a video link. To achieve this, the original document must be shared between the parties (via post) and they therefore must meet on a video call at least twice. These facts, together with the early stages of the technology mean that errors are likely to occur and disputed probate claims are inevitable.
With this in mind, it is important that video Wills are only used in situations of serious emergency and where attempts to make a traditional Will have already failed. It is also advisable to seek the advice of a specialist Wills solicitor, to ensure you stand the best chance of creating a valid Will that will be tailored to your individual circumstances.
Technological considerations
Anyone who has ever spent time using a computer and internet connection will understand the dangers of relying on the technology for something as important as creating a legally binding last Will and testament.
For a start, internet connections can be intermittent and distorting, and sometimes words may be lost or misheard without everyone involved realising; then there is also the issue of video editing as well as the fast-emerging issue of “deep fakes”.
Wills and probate – not a place for shortcuts
It remains essential that any person who prepares a video Will does so while keeping the importance of the contents of the document as an estate planning tool in mind. It is also important to remember that a video Will is not an easy option. To create a valid Will via online platforms may require three or more separate video calls and the documents will have to be passed between the testator and the witnesses which adds a significant time element to the process.
Lastly, the current situation in respect of COVID-19 may be seen by some to be a chance to commit fraud or to put pressure on a testator. Even in the most dire and urgent of situations, if a Will is created without care, or if there is any element of fraud or coercion, or if the testator does not have testamentary capacity, it opens the door for an inheritance dispute in the future.
Disputed inheritance claims are costly and complex and it is always better to ensure a Will is valid at the outset, rather than see an estate torn apart because the process was not carried out correctly.
