The coronavirus pandemic and subsequent lockdown have had wide-ranging implications across the legal sector, this is perhaps most notable in the Private Client field. There is concern amongst contentious probate lawyers regarding the number of Wills drafted as a result of panic, and the amount of Wills that have potentially not been witnessed properly or executed validly due to restrictions in place.

Witnessing Wills during lockdown & social distancing

The legal requirements for the execution of a valid Will are long-established and set out in Section 9 of the Wills Act 1837. It provides that:

“No will shall be valid unless—

  1. it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
  2. it appears that the testator intended by his signature to give effect to the will; and
  3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
  4. each witness either—
  • attests and signs the will; or
  • acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),

but no form of attestation shall be necessary.”

Lockdown and social distancing measures have meant that it is difficult to adhere to these provisions and validly execute a Will. This has led to the Government very recently announcing (on Saturday 25th July 2020) that  Wills can be witnessed remotely via video conferencing software e.g. Zoom, Skype etc and that this will be backdated to 31 January 2020.

Whilst these changes to long-established rule on execution have clearly been made to facilitate the valid execution of Wills in these unprecedented times, they may cause further issues and a “spike” I the number of potential contentious probate cases. By way of example we are seeing doubt being cast over remotely witnessed wills on the basis of undue influence occurring behind the camera and in respect of the individuals capacity to make the Will. Suspicion is being heightened by these unprecedented times we find ourselves in.

‘Rushed’ Wills

The nature of the pandemic has resulted in a significant increase in the number of Wills being prepared by individuals and to the number of instructions being given to lawyers/will writers.

Many individuals have been inclined to create a homemade Will for the sake of speed and cost-saving, which may initially (and artificially) appear very attractive. Contentious Probate Lawyers will doubtless agree that homemade Wills are a “red flag” when considering whether there is a challenge to a Will. Figures from the Co-operative Legal Services suggest that poorly drafted or ineffective Wills cause issues for over 38,000 families per year. Common issues include failing to validly execute the will, misspelling of names causing gifts to fail and dependants being left out of leaving the estate vulnerable to legal action – this is by no means an exhaustive list!

Professional Will preparers have found themselves under increasing pressure to execute Wills in a very short space of time. This raises issues as to whether individuals have received informed advice, whether the issues of capacity to make a Will has been properly assessed and also as to whether the Will has been properly executed.

The government announcement regarding the remote witnessing of Wills will in many cases help to ensure that Wills can be deemed to have been validity executed however it is also is likely to prove fertile ground for challenges to Wills based on undue influence, lack of knowledge and approval and lack of capacity to make the Will.

In summary, there is disquiet shared by many about such significant changes and concern that the number of contentious probate cases will increase in the coming months and years as a result.  

Many firms (including Myerson) have now largely returned to their offices or are looking to in the near future, which should mean that individuals who wish to make and execute a Will validly and in-person will have more opportunity to do so. However, it is worthwhile considering if you think you may have or may know somebody who does not have a validly executed Will.

For more information on possible ways to witness a Will during social distancing, please see our previous blog post.

Further information

For further information or advice, please contact our probate litigation team on 0161 941 4000 or email your enquiry.