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Matthew Duncan

-, Druces LLP

Contesting lockdown wills

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Contesting lockdown wills

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Matthew Duncan anticipates a sharp rise in contentious probate cases resulting from covid-19 

As practitioners begin to return to a more normal way of working, there is a growing sense that there will be an increase in contentious probate claims for wills that were executed during the lockdown period. 

The government’s announcement that changes are to be made to legalise remote witnessing of wills may lead to an even greater increase in disputes. 

Even before the current crisis, the number of contested wills being heard at the High Court had reached an all-time high. In 2019, there were 188 cases, which represented an increase of 47 per cent on 2018, according to figures released by the Ministry of Justice.

UK law firms and will-writing organisations experienced a dramatic increase in will enquiries following the social distancing and lockdown restrictions implemented by the government in response to the pandemic. In fact, it was widely reported that will enquiries had increased by 75 per cent since the start of the pandemic.

This is a significant rise and was undoubtedly fuelled by anxieties about the increasing number of covid-19 related deaths. People’s minds were more focused on financial planning for after their death as they had more time on their hands.

For practitioners, the increase in enquiries presented a number of significant challenges including obtaining clear instructions, explaining the provisions of wills to testators and, perhaps most challenging of all, ensuring the valid execution of wills. 

Execution challenges

The provisions of section 9 of the Wills Act 1837 require that the testator’s signature “is made or acknowledged by the testator in the presence of two or more witnesses present at the same time”. This requirement had posed significant challenges during lockdown for practitioners. The Wills Act does not allow the will to be witnessed by video link as the witnesses are required to be in the physical presence of the testator. 

The proposed new temporary legislation will alter section 9 so that witnesses can now be present physically or virtually. Note that two witnesses will still be required. This change is currently expected to remain in place until 31 January 2022, however as with other emergency legislation brought in response to the pandemic, this may be shortened or extended.

The change will be retrospective so for those who have already conducted signing via video conferencing since 31 January 2020, their wills will be considered valid. The guidance published by the Ministry of Justice states it is not intending to allow for electronic signatures; a physical signature is still required due to the risk of fraud or undue influence. The guidance is also clear that the use of ‘counterpart’ wills will not be allowed. Best practice would be for the video to be recorded.  

The proposed changes and the use of video witnessing will be welcome by many, but I question why this change has taken so long. In the early days of lockdown, practitioners sought a relaxing of the rules to aid them with the demands of clients. As the lockdown restrictions have now been eased, this legislation appears to come too late in the day.

In addition to the actual signing of the will, preparing the document itself appropriately has been challenging. Many practitioners, unable to have face-to-face meetings with clients to obtain instructions, have taken phone and video instructions and arranged for documents to be posted; or sent in other ways for signing – accompanied by clear instructions on the steps they should take to ensure the will
is legally valid.  

For elderly and vulnerable testators, practitioners have had to give the advice to execute a will or amend a will in the best way possible without a risk to their health. As a consequence, I am sure that where there has been an urgent need for a new will or codicil, the deed will have been executed in less than ideal circumstances, with the requirements of section 9 of the Wills Act being stretched. 

The Law Society of England and Wales was clear in its advice to solicitors during the lockdown period that the usual best practice in relation to the preparation of wills continued to remain of paramount importance despite
the circumstances.

Particularly, that means retaining a full file with detailed attendance notes; letters of wishes detailing testators’ reasons for the exclusion of persons who might otherwise be expecting to benefit from the will; and following the so-called golden rule to obtain a capacity assessment where there were any concerns as to capacity. 

However, many practitioners will have found following all of the best practice recommendations a challenge. No doubt many were faced with difficult situations. Time will tell whether some of the decisions taken by practitioners will be open to scrutiny in a future legal challenge. 

Future contentious cases will consider in some detail the circumstances surrounding the execution of wills to ensure the section 9 provisions (as now temporarily amended) were adhered to. Any contemporaneous file notes, statements and video recordings made at the time will be of assistance. 

Homemade wills have always been a fertile ground for disputes, and it would be reasonable to expect significantly more of them to have been made during the pandemic because of the difficulties in arranging to see a will practitioner in person. 

There could, therefore, be many people facing potential contentious probate matters further down the line as a direct result of ‘DIY’ wills made during the pandemic.

Lines of attack

The validity of a testator’s will can be disputed for a variety of reasons such as lack of mental capacity when it was made; undue influence of a particular party; or errors in the way the will was prepared or executed. 

However, the most common grounds for litigation are undue influence, lack of knowledge and approval, and a belief that a will was fraudulent or forged. The pandemic and, particularly the lockdown, have compounded the likely reasons to dispute a will.

Dependency claims

A further factor is that many people will have died during the pandemic without having had the time or opportunity to make a will or update an existing will. This will also contribute to the expected increase in claims against deceased estates. 

Practitioners are already advising relatives in relation to claims under the Inheritance (Provision for Family and Dependants) Act 1975 where, for example, parents have died from covid-19 without adequate provision being in place for them.

We can expect that the number of inheritance disputes will increase as the economic effects of covid-19 add to the financial pressures weighing down on families. As the UK almost certainly faces an economic slump following the end to lockdown, it is well documented that litigation “survives during a recession” as was clearly evident during the last financial crisis. 

Future reform

Covid-19 has exposed the Wills Act as a somewhat archaic piece of legislation. Given societal changes and modern technological advances, it should be reconsidered urgently. A temporary solution to the current crisis is not the answer: a more detailed wider reform of the Act is required.  

Matthew Duncan is a partner at Druces druces.com