The Ministry of Justice has recently issued a press release confirming that Wills and codicils can be witnessed via video-link. It is considered as a major breakthrough by the industry, but practitioners must be extremely careful when they look to execute a Will under these circumstances. We will highlight the extent of the proposed legislation and provide advice on how to reduce the risk of the Will being challenged based on the current information at hand.
What are the government intending to introduce?
The government is not changing any part of the Wills Act 1837, rather the change comes in the definition of the term “present”. This will mean that the Will can be sent to the witnesses and each time the Will is to be signed, the parties will have a video meeting to witness the signatures. There must still be two independent witnesses and they must all physically sign the original Will; counterparts or electronic signatures are still prohibited. The video call must also be live and ideally recorded and a copy kept in the event that the Will is subsequently challenged.
The government will be introducing the law in around September 2020, but the law will apply to Wills created since 31 January 2020 (being the date of the first confirmed case of COVID-19 in England and Wales) for two years. However, the law will not apply where an application for probate has either been submitted or granted.
What should practitioners do to remain within the law?
It is worth noting that practitioners should witness Wills in person where possible; video-witnessing should only take place where in very few circumstances.
Therefore, if it is not possible for your client to witness a Will in normal circumstances, you should follow the government guidance and take additional precautions.
For example, you should discuss recording the meetings with your client and record the entire meeting, as well as making detailed attendance notes.
You should also ensure as far as possible that your client is alone in the room, or that they are not being unduly influenced or are under duress by any other parties. This could be done by asking whether there is any person within the room either on screen or not, and asking their purpose for being there. You may wish to ask for some identification to confirm who the client is and any other person in the room.
When signing, you must make sure that the testator and witnesses can see one another signing the document and that they show their signature to the camera and acknowledged by the person signing that this is their signature.
The Will will then need to be sent from the testator to the witnesses. This should be done within 24 hours ideally.
If, or when the situation changes and the Will can be executed in the normal way, you should contact your client to re-execute the Will to avoid any claims against the validity.
The government and Society for Trust and Estate Practitioners (STEP) have issued initial guidance, while the Law Society are also looking to issue guidance on the legislative change.
We can assist you if you would like further guidance on how to execute a Will this way, or indeed if you believe you are aware of any invalid Wills being made.
Our contentious probate team specialises in all aspects of contentious probate and is consistently ranked in the top tier of The Legal 500. The team is headed up by Robert Weston, who is listed in The Legal 500 as a “leading individual” and was the instructing solicitor for the successful party in the landmark judgment of Walker v Badmin. Robert, together with Suzanne Lee and Andrew Chandler are all full members of The Association of Contentious Trust and Probate Specialists (ACTAPS) and represent clients both nationwide and abroad in both bringing and defending claims.
If you have a contentious probate matter which you would like to discuss with a specialist solicitor with a view to instructing mfg Solicitors LLP, please visit https://www.mfgsolicitors.com/site/services-for-me/contentious-probate/ for further information and contact details.