On 1 February 2022, legislation will come into force extending rules made in September 2020 that permit wills to be witnessed over video (the “Rules”). The new legislation is applicable until 31 January 2024. In this article, Judith Swinhoe-Standen evaluates the Rules and potential challenges to remote wills.
A recent survey of members of the Society of Will Writers and the Institute of Professional Will Writers showed that the vast majority of will drafters have taken instructions remotely since the start of the pandemic. That said, they are also concerned about the potential for remote wills to be disputed.
What are the risks of remote wills?
Since the Rules were enacted, legal commentary has highlighted the extended range of potential challenges arising from wills made remotely.
Will drafters are concerned that taking instructions remotely restricts the measures they can take to check that the testator (the person making the will) is not subject to undue influence or fraud. This can be identified more easily in a physical meeting, not only because the will drafter can speak to the testator alone if they have concerns, but also because it can be easier to ask sensitive questions about the testator’s family relationships in person rather than via a video link. It is impossible in a video call to be certain that somebody is not lurking out of shot, putting pressure on the testator to give a particular instruction.
Will drafters also worry that they lack protection in the event that a will is challenged on capacity grounds where capacity has been established over video. Signs of a lack of capacity may be evident through small talk, which can be easier in a physical meeting than in the more stilted atmosphere of a video call. This is particularly important for elderly clients, who are most susceptible to capacity questions yet may be more uncomfortable or unfamiliar with a video meeting than a younger client whose capacity is less likely to be questioned.
The Rules also present practical problems: the witnessing process they outline is more logistically complex than a physical signing. Several video meetings are required and the will must be posted between the testator and the witnesses. This adds various risks, such as pages being inserted or removed from the will before it is posted.
What might a challenge look like?
Any challenge to the validity of a remote will is likely to be heavily evidence-based.
A claim based on a lack of due execution would require detailed contemporaneous evidence from the witnesses. A recording of each of the video meetings would be useful evidence.
Such evidence would also be vital to an undue influence challenge, in addition to the usual medical evidence and notes of meetings with the testator. In view of the high standard of proof for such a challenge, it may be necessary to gather additional evidence from both witnesses and the will drafter. This would include whether they understood that the testator was making their testamentary decisions for themselves and/or were alone when signing.
It is worth remembering that the Rules permitting video witnessing are aimed at those who cannot mix in groups. The testator is therefore likely to have had limited interaction with others around the time of making the will, so the evidence provided by any witnesses in a claim would in turn be limited. In the absence of such evidence, a challenge would be difficult to uphold.
Avoiding a challenge to a remote will
The Law Society recommends that a remote will should be a last resort and that wills should be signed and witnessed physically in the usual way where it is safe to do so.
If a will has to be executed remotely, will drafters should provide prescriptive instructions to the testator and both witnesses to minimise the risk of mistakes. If possible, the will drafter should be present at all of the video meetings.
If a testator has had to execute a will remotely, or will have to do so before January 2024, they should consider re-executing it physically as soon as they can in order to reduce the possibility of a challenge.
The Rules are helpful for unavoidable situations but, unless absolutely necessary, making a will remotely is unlikely to be worth the risk.
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