'Floodgates' warning prompted by plan to legalise remote wills witnessing

Lawyers warn of a floodgate of disputes after the government announced it will legalise remote witnessing of wills retrospectively from 31 January 2020

27 Jul 2020

Lawyers have warned of a floodgate of disputes following the government’s announcement that it will legalise remote witnessing of wills retrospectively from the end of January.

New legislation will be implemented in September permitting video-witnessing of wills if the quality of the sound and video is sufficient to see and hear what is happening at the time.

However, remote witnessing must be a last resort and two witnesses will still be required.

The move follows a significant rise in the numbers of wills executed since lockdown restrictions were imposed in March.

The social distancing restrictions raised practical and legal problems for many testators and their lawyers in complying with the legal requirements for signing wills.

The Law Society warned that the law change “may cause confusion where steps have already been taken after a person has passed away without apparently having left a valid will”.

The new law, amending the Wills Act 1837, is intended to be temporary and will remain in place only as long as necessary.

However Jan Atkinson, Osbornes’ head of private client, said: “Given that national lockdown measures have been eased and we’re all getting used to carry out tasks wearing face masks, this does seem to be a case of the government shutting the stable door once the horse has bolted.”

She said her biggest concern is that “without very clear guidance as to what is acceptable by way of remote witnessing of wills and to who that will apply, the floodgates could open for more wills and estates disputes over the coming years”.

Guidance has been issued but Rachel Mainwaring-Taylor, partner at Farrer & Co, said this fails to address the potential for fraud or improper execution, "particularly where someone might look to exert undue influence on witnesses off-camera".

She commented: "Questions also arise as to how and where to store video recordings of the execution, how to ensure the authenticity of these recordings and who should bear responsibility for this process.

"Given these uncertainties, there will be few instances where virtual witnessing will be preferable to a will executed in a more ‘normal’, socially distanced manner, such as by witnesses having a clear line of sight of the signing through a window."

Alistair Spencer of Lime Solicitors said the Wills Act “has caused significant problems for legal practitioners during the lockdown who have had to resort to increasingly inventive ways to comply with the requirements of a Victorian Act of Parliament”.

He welcomed the move and said it is “reassuring that the legislation will be backdated to 31st January 2020, meaning those who have already used video conferencing to have their will witnessed during the pandemic are at a reduced risk of subsequently being found to have an invalid will and that will being challenged further down the line”.

However, Spencer expressed concern that the changes “are being rushed through without proper consideration of the impact they may have on vulnerable individuals and may ultimately result in additional litigation”.

He commented: “It is simply impossible to know for certain if you are witnessing a will over video conferencing whether anyone is in the room with the testator when they are signing the will. 

“Individuals could easily avoid being seen by a video camera if they were intending to compel a testator to make a will in terms which favoured them.”

He added: “The current witnessing requirements, whilst not ideal, do make it more difficult for an individual to be unduly influenced to make a will."

Though cautiously welcoming the temporary rule change, the Law Society’s president Simon Davis warned of unintended consequences.

He acknowledged that it will “help alleviate the difficulties that some members of the public have encountered when making wills during the pandemic”.

He said from the start of lockdown, the Society has been speaking with the Ministry of Justice about how best to alleviate the difficulties the public have encountered when making wills, arguing for legislation “to give judges dispensing powers to recognise the deceased’s intentions where strict formalities for making a valid will have not been followed – ensuring their estate is inherited as they intended”.

“However”, added Davis, “this would require primary legislation to enact – time for which is limited – and the government has decided to allow temporary remote witnessing…

“The government needs to ensure the legislation is properly drafted to minimise unintended consequences and ensure validity.”

He warned that both probate professionals and the public will need greater clarity on when remote witnessing is appropriate and what to do in exceptional circumstances – such as if the testator dies while the will is being sent to a witness’ address for them to sign.”

He said wider reform of the Wills Act is needed in the long term to bring it into the 21st century.