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Making and challenging Wills in the COVID-19 era

Sometimes the law changes quickly. In a Budget speech, a chancellor may announce new measures that have effect immediately and trigger a flurry of activity as advisers and clients come to terms with new rules, suddenly imposed.

It is fair to say, however, that the pace of change in the law is sometimes slower than that. And often a lot slower. The Wills Act of 1837 is by no means the oldest act of Parliament still on the statute books but it is a good example of a piece of legislation which has, over the years, been amended by Parliament and interpreted and re-interpreted by the courts. It survives as something of a legal patchwork of old and new rules.

The Wills Act 1837 

Crucially the 1837 Act still governs the question of how a Will must be signed and witnessed if it is to be valid and it was these old rules which came under severe strain this year.

Anyone who has ever made a Will in this country may remember the requirements: the person signing (the “testator” or “testatrix”) has to do so in the presence of two witnesses. Those witnesses then add their own signatures; everyone remaining present throughout.

Suddenly in 2020, with the arrival of the coronavirus pandemic, an element of public health risk was added to the mix: was it safe for witnesses to be present with the testator for this signing procedure?   Was it even lawful, within the various Covid regulations, for a testator and independent witnesses to mix in this way?  And what of those elderly or vulnerable testators, often the people keenest to make or update their Wills?

Of course, in many cases lawyers have found ways to follow all the rules: keeping everyone safe and making sure that the end result was a valid Will. We have worn PPE; we have kept the signing within our line of sight and remained at a safe distance; we have even looked in through open windows to witness the signature of a vulnerable client.

But for those that weren’t so scrupulous, in particular with home-made Wills, one wonders what corners were cut. No doubt we will see legal challenges to those Wills in the coming months and years. If you were a disappointed beneficiary who got a nasty surprise under a Will that was signed in unusual circumstances this year, your mind would no doubt turn to those issues too.

The age of video-witnessed Wills

To this picture, we must now add an additional element of complexity because the 1837 legal regime for Wills has recently been patched-up again. Acknowledging the difficulties of witnesses and testators being together physically during the pandemic, Parliament has now given us “The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020” which came into force in September. The key provision of this multi-bracketed Order is that, for the purposes of the 1837 Act ‘“presence” [now] includes presence by means of video conference or other visual transmission.’ and this extension of the law applies (retrospectively, from 31 January 2020 and) for two years until January 2022.  The age of the video-witnessed Will has arrived.

This relaxation is broadly good news and will help those anxious clients (often elderly or vulnerable) who want to update date their Will, or make a codicil, safely in these stressful times. But this video option is not without its own risks. Wills signed only by a Testator then have to be sent on to the witnesses for signature, subsequent to the video procedure. What of these incomplete Wills that get delayed or go missing in the post before finalisation? What of Wills signed by the Testator but not yet signed by both witnesses before the Testator (or one of the witnesses) dies?  What of the additional possibilities for fraud where documents are switched before being sent on to the witnesses?

Will video-witnessed Wills lead to future legal disputes?

It seems clear that the legal challenges thrown up by the pandemic are going to leave a legacy which lasts beyond the arrival of the vaccines and our hopeful return to a more normal life in 2021. Will video-witnessing in fact become a permanent feature of the law of succession? Will the Wills Act of 1837 ever been thoroughly modernised? Will we see greater numbers of frustrated heirs coming to the courts in the years ahead as the impact of the pandemic plays out in the inheritance disputes of the future?  For the Wills of 2020, only time will tell.

Further information

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