A dispute perspective on remote witnessing of wills

In a world where self-isolation, social distancing and lockdown are all now very familiar words to us all it was only in the Spring of 2020 that private client practitioners were debating whether or not witnesses of a will had to be physically present when a testator signed their will in order for it to be valid.

The Wills Act 1937 requires a will to be in writing and signed by the testator in the presence of two witnesses who sign it in the testator’s presence.  These requirements for a will to be valid inevitably threw up difficulties in our ‘new normal’ world. Legislation to combat these difficulties, and to ensure those who wished could leave valid wills, led to the passing by Parliament of the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952, which came into force on 28 September 2020 and currently applies to Wills made between 31 January 2020 and 31 January 2022. It allows wills to be validly executed where the execution process is witnessed by live video link.This means that if someone is self-isolating and there is no feasible way to arrange for witnesses to be there, they can video record themselves executing their own will, with the witnesses present via a video link, and the will is legally valid. The same will executed by the testator must then be signed by each of the witnesses, with their signatures being seen by the testator over video link.

This change in the law is a welcome development which should allow those who would otherwise be unable to execute a will to validly be able to do so. Crucially, however, the use of video technology should remain a last resort.  Where people can make wills in the conventional, and Covid safe way, they should continue to do so.With change comes uncertainty and despite peoples best efforts there is undoubtedly a risk that remote witnessing of wills could lead to an increase in will validity challenges. 

As well as the requirements for a will to be properly executed the law requires a testator to have testamentary capacity to make a will, know and approve it contents and not be subject to undue influence. The new legislation does not change this.The law does not require a witness to be satisfied that the testator has capacity to sign a will; indeed, a witness does not technically need to know that the document is a will or know or understand its contents.  If the will is later subject to a validity challenge based on the testator’s capacity the witnesses recollections as to the testator’s state of mind, appearance, comments made at the time the Will was signed are likely to very important. The absence of physical presence at the signing, however, is likely to limit the ability of the witnesses to form an impression on many of these factors making their evidence less valuable.Undue influence occurs when a testator is forced or coerced, by a third party, to make dispositions in their will which they did not really want to make.

Being present only via video link limits a witnesses ability to know whether a third party is present in the room with the testator and so they are unable to confirm whether there was anyone else present at the signing.   Being present when a will is witnessed has historically served as safeguard against any such undue influence or allow interested parties to identify it later, i.e. was that third party present at the will signing and were there any signs of pressure from that person.  Again, the evidence of a remote witness is unlikely to be as persuasive as that from a witness who was physically present when the testator signed resulting in undue influence cases being even harder to pursue.The ability for a testator to sign their will and send it to the witnesses to sign provides an opportunity for the will to be substituted with another will before it reaches the witnesses. In such circumstances, a testator may not review their will again once witnessed or indeed spot that the final version is not the one that they signed. This opportunity for a third party to intervene could result in more cases where fraud or forgery are alleged.An executor of a will should be satisfied that a will is valid before applying for Probate and equally if a beneficiary doubts the validity of a will they should seek professional advice sooner rather than later.Our Wills, Trusts and Inheritance Disputes team in Oxford anticipate a rise in contested estates in the coming months and years due to the pandemic where testators have had less time for a will to be drafted or properly drafted. A rush by testators to execute a will via video link will no doubt add to this predicted increase.Should you require advice about challenging the validity of a will, whether as a result of video witnessing or otherwise, or the distribution of an estate under the intestacy rules, please get in contact with our Wills, Trusts and Inheritance Disputes team in Oxford on 01865 781061.