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The problem with video witnessed wills

Anisha Kaur | The problem with video witnessed willsIf you made or updated a will during lockdown, this will likely have been witnessed over video call rather than in person. While this may have been the only practicable solution during the lockdown period, there are now concerns that video witnessed wills could be subject to greater scrutiny when the time comes to assess their validity, namely upon death.

The Covid-19 pandemic posed many challenges to the way we live and work. In the personal law domain, perhaps one of the greatest of these challenges was to satisfy the requirements of putting in place a valid will.

As set out in Section 9 of the Wills Act 1837, in order for a will to be valid, (1) it must be in writing; and (2) it must be signed by the testator (i.e. the person making the will) in the presence of two independent witnesses. Crucially, to be an independent witness, you must not be related to the testator or have a personal interest in the will that is being created.

When social distancing rules were implemented and individual households were prevented from integrating with other households, the ability to satisfy the rules imposed by the Wills Act and create a valid will became rather challenging.

In light of this, the government temporarily amended the Wills Act to make this possible. The amendments enabled people to use video call technology to virtually witness a testator signing their will, which was deemed sufficient to meet the requirements.

This process involved a series of multiple calls. Firstly, a video call was required for the testator to sign their will. A second video call was required for the first witness to sign, followed by a third video call during which the second witness would sign, with the will being posted from one person to the next between calls.

This protracted process gave rise to a multitude of issues. These included but are not limited to: poor internet connection interrupting people’s ability to witness; long delays which sometimes resulted in testators dying before both witnesses had signed; and challenges in assessing undue influence and capacity.

With an increasing number of wills being disputed, there are now concerns as to how the execution of video witnessed wills will be assessed if their validity is questioned. If your will was witnessed via video link, is there anything that you could do now as a preventative measure?

If your will is questioned and it has been witnessed via video call, this may provide someone with more grounds to challenge its validity given the uncertain circumstances at the time it was made. Was it signed correctly? Did you fully understand what was happening when putting your will in place? Is it possible that you may have been unduly influenced at the time or felt pressured in any way to make a will?

It is not yet certain whether video witnessed wills will fall foul of scrutiny over their execution. However, for the avoidance of doubt and as a precaution we would suggest that whilst you are still compos mentis, it would be advisable to arrange to re-sign and witness your will following the traditional in person ‘face-face’ process.

Even if you do not change any of the contents within the will itself, as the circumstances surrounding its execution will be more concrete, leaving no or minimal ambiguity, it is significantly less likely that your will would be deemed invalid under Section 9 of the Wills Act. Similarly, any queries raised regarding your understanding or undue influence when making your will would be significantly reduced.

How can we help?

Our personal law team has the knowledge and experience to help you to get your affairs in order so that you can have peace of mind about what will happen to your estate.

We aim to work to a fixed price wherever possible and many of our lawyers are accredited by the Society of Trust and Estate Practitioners. This means we are always up to date with the latest changes in legislation and are continuously developing our professional knowledge to ensure that we are advising you correctly.

If you need help making, updating, or re-signing and re-witnessing a will, contact Anisha Kaur on 01274 386 982 or at ku.oc1718416601.fcl@1718416601ruaka1718416601 for further information.

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