Floodgates Expected to Open on Disputes

Government needs to ensure the legislation is properly drafted to minimise unintended consequences and ensure validity – Simon Davis

Lawyers have warned of a flood of disputes following the government’s announcement that it will legalise remote witnessing of wills retrospectively from the end of January. New legislation will be implemented in September permitting video-witnessing of wills if the quality of the sound and video is sufficient to see and hear what is happening at the time. However, remote witnessing must be a last resort and two witnesses will still be required. The move follows a significant rise in the numbers of wills executed since lockdown restrictions were imposed in March. The Law Society warned that the law change “may cause confusion where steps have already been taken after a person has passed away without apparently having left a valid will”. The new law, amending the Wills Act 1837, is intended to be temporary and will remain in place only as long as necessary.

Alistair Spencer of Lime Solicitors said the Wills Act “has caused significant problems for legal practitioners during the lockdown who have had to resort to increasingly inventive ways to comply with the requirements of a Victorian Act of Parliament”. He welcomed the move and said it is “reassuring that the legislation will be backdated to 31st January 2020, meaning those who have already used video conferencing to have their will witnessed during the pandemic are at a reduced risk of subsequently being found to have an invalid will and that will being challenged further down the line”. However, Spencer expressed concern that the changes “are being rushed through without proper consideration of the impact they may have on vulnerable individuals and may ultimately result in additional litigation”.

He commented: “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.” He added: “The current witnessing requirements, while not ideal, do make it more difficult for an individual to be unduly influenced to make a will.”

Though cautiously welcoming the temporary rule change, the Law Society’s president Simon Davis warned of unintended consequences. “The government needs to ensure the legislation is properly drafted to minimise unintended consequences and ensure validity.”