A temporary law allowing wills to be witnessed over video has sparked warnings it could leave vulnerable people open to abuse and lead to more legal challenges.
The Government plans to legalise the remote witnessing of wills and backdate the measure to 31 January – the day the first coronavirus case was confirmed in the UK.
But while many lawyers welcome the move, some have also expressed concerns unscrupulous people will be able to exert pressure on those making wills, while remaining out of sight of witnesses over a video link.
Coronavirus measures: Many lawyers have dealt with vulnerable elderly clients via video during the pandemic
The measure will be kept in place until 31 January 2022, or longer if necessary due to the pandemic.
But after that the law will revert to requiring a person creating a will and two witnesses to be in the same place and all sign the document to ensure it is valid.
The coronavirus outbreak has led to a dramatic rise in people making wills and to calls for the law on witnesses to be relaxed.
Find a guide to making a will below.
The virus lockdown and social distancing created a huge practical challenge, especially as witnesses must not benefit from a will, which will often rule out people living in the same household.
The Ministry of Justice says the change allows people to have their wills legally recognised if they use technology like Zoom or FaceTime to get them witnessed, as long as the sound and video is good enough quality to see and hear what happens.
The backdated legislation will be passed next month, but the Government says using video technology should remain a last resort, and people must continue to arrange physical witnessing of wills if it is safe.
How are the witnesses to know that, just out of camera shot, there is not someone putting pressure on the testator to sign?
Charles Hutton, partner at Charles Russell Speechlys
The Law Society of England and Wales says the decision to allow wills to be witnessed remotely will help alleviate difficulties during the pandemic, and it is glad guidance has been issued to minimise fraud and abuse.
The STEP trade body of inheritance professionals says wills can continue to be drawn up efficiently, effectively and safely by those isolating, and welcomed the move to apply this retrospectively.
Michael Culver, chair of the board at Solicitors for the Elderly, said he was glad witnessing via video conferencing was made an option in these highly unusual circumstances, but it should only be used as a last resort.
‘There are the obvious safeguarding issues that could cause problems, especially when it comes to looking out for undue influence and coercion.
‘For example, it will be harder to ensure the testator isn’t being coerced by someone else in the room, if you’re unable to see behind the camera. ‘
Other risks are issues over interpreting the law which could leave people without legally binding wills, and the documents getting lost in the post, adds Culver.
‘Also if your client is vulnerable and shielding they have to consider the logistics around actually posting the will.
‘This can cause delay and if they were to die before the final witness signs the will it will not be considered valid. All of this leaves the will open to disputes later down the line.’
Michael Culver: Only use video to witness wills as a last resort
Alistair Spencer, associate at Lime Solicitors, says during the lockdown lawyers have had to resort to increasingly inventive methods of complying with the existing Wills Act, which requires a will to be signed in the presence of two witnesses.
He says it is unlikely an Act dating back to the 1830s would cover witnessing of wills by video conferencing or allow for ‘virtual presence’, which could lead to more challenges to wills.
But although he welcomed the government moving the requirements into the 21st century, he voiced concerns the change has been rushed through without properly considering the impact on vulnerable individuals, and that this might also ultimately result in additional litigation.
‘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.
‘The current witnessing requirements whilst not ideal do make it more difficult for an individual to be unduly influenced to make a will.’
Linda Ford, chief executive of the Chartered Institute of Legal Executives, says: ‘At a time of greatly increased demand, our members have told us clearly that social distancing and lockdown have caused significant difficulties with witnessing wills and so the government is right to make this temporary move.
‘Many consumers seeking access to services such as will writing are likely to be particularly vulnerable at this time, and measures to help further support social distancing at this time are greatly welcomed.
‘But these changes need to recognise the risks of duress, undue influence and fraud, and build safeguards into any such new regime.
‘Unfortunately, wills can bring out the worst in people and the retrospective nature of the change, whilst providing additional assurances for those who have already made their wills over the lockdown period, could make some cases particularly fraught.’
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Ford urged the government to set up a promised industry working group to consider the security and technology involved in electronic signatures, and witnessing them by video.
Lorraine Robinson, head of legal at online wills specialist Farewill, said: ‘We’ve heard from hundreds of customers finding it difficult to get wills signed due to lockdown, isolation and illness.
‘This is a step in the direction of a more modern approach to witnessing wills – many of the laws are outdated and archaic.
‘Plus, if we do experience a second wave, this provides clarity and a real, safe alternative for a valid will to be made while in lockdown.
‘However, we’re urging people to be vigilant as the new law may not be as simple to follow in practice.
‘Wet signatures are still required and all parties must sign the same document together by video link.
‘This requires at least two separate video sessions, and for the passing of the original document between the parties, between video sessions.
‘It’s important to understand that this law does not enable electronic signatures of wills.
‘It’s quite unlikely that the law could be applied to urgent situations such as on a deathbed in hospital, particularly in isolation.’
She added that the allowing ‘counterpart’ documents to be signed and put together would have been a preferable option and more practical.
‘At Farewill we’re still advocating for a ‘dispensing power’ – something that already exists in Australia. It gives courts the ability to determine what constitutes a will, where somebody wanted to make one but wasn’t able to adhere to formalities.’
Charles Hutton, partner at Charles Russell Speechlys, said: ‘It is welcome news that the government has relaxed the rules about the witnessing of wills, bringing England in line with many other countries.
‘However, concerns remain that this process will be open to abuse. How are the witnesses to know that, just out of camera shot, there is not someone putting pressure on the testator to sign?
‘Admittedly, the current system is not perfect, but we may see a spike of undue influence cases following the deaths of those who have signed their wills in this way. The advice has to be to use the traditional method wherever possible.’
Making a will? A five-step guide
Alistair Spencer, associate at Lime Solicitors, offers the following to-do list.
1. Work out what assets you own
The value of your assets and how those assets are held such as in property, shares and so on will determine whether your estate might be taxed upon your death.
It is worth putting together a schedule of your assets and liabilities with at least approximate values before attending a meeting with a legal professional to make a will.
The legal professional will consider what tax reliefs might be available and the most appropriate and tax effective way of structuring your will.
2. Decide who will benefit from your will?
Many wills are disputed as family members are left shocked and angry by the contents when a loved one has passed away.
This can lead to costly disputes and your decisions being scrutinised and potentially changed.
Therefore, once you’ve written your will it is important that you communicate its contents with your family and friends to ensure there are no surprises down the line.
It is also often advisable if the contents of the will could be seen as potentially contentious to prepare a letter of wishes to be kept with it, setting out why you have made the decisions you have in your will and why certain people might be excluded.
3. Choose your executor
Ideally you should name more than one person to act as your executor as this minimises the risk of both executors predeceasing you.
You can also choose one or more substitute executors if the executors you have named are unwilling or unable to act.
Executors are the individuals who will carry out the terms of your will and sort out your estate when you die.
They should be individuals you trust implicitly, must be over 18 years old at the time of your death and must be mentally capable of doing the job.
If naming more than one executor ensure as far as you can that the executors will be able to work together.
It might be sensible to appoint at least one professional executor although there will be costs associated with this. An executor can also be a beneficiary under your will.
4. Find two witnesses
Any witness should be independent so they should not be a beneficiary of the will or a spouse or civil partner of a beneficiary.
Any gift you make to the witness or to their spouse or civil partner will fail.
If you make your will via legal professionals generally they will provide the independent witnesses.
You must have a minimum of two witnesses and they must both see you sign or acknowledge the will in their presence before signing the will themselves.
The recent announcement from the government now allows virtual witnessing of wills from 31s January 2020 to 31 January 2022 or such other time period as the government may decide. The will must still be physically signed by the witnesses and the testator [the person making the will].
5. Keep your will updated
In my experience, many people often forget to update their will after a significant life event and risk the document not outlining what they want it to do.
This doesn’t mean that you have to make a new will as often the changes are quite straightforward.
Once you’re married, any will made prior to your wedding day will be automatically revoked so if you do separate from your partner, changes need to take place to reflect the change in your circumstances.
It is not unusual to come across situations where an individual has passed away after divorcing but has failed to update their will resulting in their former partner still benefiting from their estate.
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