July 27, 2020

Wills witnessed over video link to be legal

The legislation will apply to Wills made up to two years from when the legislation comes into force (so until 31 January 2022), however this can be shortened or extended if deemed necessary, in line with the approach adopted for other coronavirus legislative measures.

It is a vital solution for families, and one which we have provided during lockdown to our clients where necessary.

There has been a sharp increase in instructions for Wills since the coronavirus crisis, with people wanting to take steps to put their affairs in order, as the risk played on everyone's mind.

In the early days of lockdown, we acted for a very ill individual with Covid-19, taking instructions from him via a WhatsApp video call. Using the video facility, we were able to check that he was alone in the room to ensure he was not being coerced. We then recorded his wishes. A draft Will was emailed to him. In a second video call to execute the Will, the client instructed the solicitor to sign his Will on his behalf, whilst the client watched on the video. Then the solicitor and his wife signed the Will as witnesses.

We had to warn the client that this was the best that could be done in the circumstances and that the Will might well be formally invalid: a test case would be required to determine whether the Will was in fact valid. In our view it was arguable that the Will did satisfy the requirements of the Wills Act, since the Will was signed and witnessed in the line of sight of the client – albeit that the line of sight was via video. To be sure, however, we advised that the Will should be re-executed in conventional fashion should the client recover. In fact, happily in that case the client did recover and so was able to re-execute his Will - although now the new law would assist in any event.

The introduction of a retrospective law will reassure thousands of people who might be concerned that Wills executed during lockdown over a video call would have no legal force.

DIY Wills: a word of caution

Crucially, the new legislation will help to avoid DIY Wills which do not provide the level of reassurance of a professionally drawn version.

We have seen a definite increase in Will disputes over the past 15 years or so, as people become increasingly aware that Wills are often open to challenge (in specific circumstances).

It is understandable that during the coronavirus crisis we will see people making Wills in a rush and without legal advice. However, a DIY Will only serve to increase the likelihood of those Wills being challenged in due course. Do seek legal advice: it really will save problems further down the line.

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