The law governing how a will is witnessed dates back to 1837 and for good reason. The requirement for two people (neither of whom can inherit from the will they are witnessing) to be physically present at the signing of a will is designed to, among other things, prevent fraud and the exercise of undue influence. That is, until the Covid-19 pandemic struck.
Social distancing measures have made the physical witnessing of a will being signed particularly challenging, especially where many of those making, or changing a will, are shielding or otherwise vulnerable. Nonetheless, despite these difficulties, the recent Government announcement that it will be legislating to allow a will to be witnessed remotely, via video link, came as a surprise.
Relaxation of the rules receive caution welcome
Since the pandemic struck, most lawyers have found themselves in a quandary – how to ensure we comply with the law while keeping our clients safe. We have, like many other firms, experienced an increase in clients wishing to make or change a will and have put a number of measures in place to ensure that our clients' wills are physically witnessed in line with social distancing requirements. This has either been by something as simple as witnessing through a window or by working with healthcare professionals who have the appropriate equipment and access to ensure compliance with the witnessing requirements. Therefore, on balance, the relaxation of the rules to allow remote witnessing is to be welcomed. However, we would voice a note of warning: there should be a basic etiquette in place to ensure, as far as is possible, that the person making the will is not being unduly influenced or being coerced in any way. This could be as simple as adjusting the camera so that the upper body of the will maker is fully visible. Regardless, the whole process needs very careful thought.
Video technology cannot rule out fraud
It is worth pointing out that the number of disputes over wills has been growing year on year. The reasons are many and various: people drafting their own (DIY) wills, not seeking proper legal advice to accommodate increasingly complex family structures, and an increasing elderly population and higher rates of dementia. While these new rules on witnessing via video link will help many people anxious to make a valid will, caution must be their watchword. There is a very good reason why the Act governing the witnessing of wills is nearly 200 years old; despite advances in video technology no one has yet to find a fool-proof way to ensure that a will signed remotely has neither been forged, nor subject to other fraudulent activity.
A will must be legally watertight
This is why it is critical that any will is as legally watertight as it can be to minimise any prospect of future litigation – a course of action that creates enormous financial and emotional pressures for all those concerned. We will continue to help our clients sign their wills in the physical presence of two witnesses unless absolutely unavoidable – and we have a number of ways in which we can make this happen safely for all involved. However, we recognise that there may be times when physical witnessing is simply not feasible. If this is the case, we will do everything we can to put appropriate arrangements in place for remote witnessing. Although the rules will be applied retrospectively from 31 January 2020, remaining in place until 31 January 2022 (unless the Ministry of Justice decides otherwise), this change in legislation is no guarantee that a will witnessed remotely will be protected from being contested in future.