During the pandemic, as a way to allow Wills to be witnessed properly, despite the social distancing restrictions, the law was temporarily changed to allow witnessing to Wills to be completed via a video-link. This came into force in September 2020, and was temporarily extended to 31 January 2024.
The law surrounding the formalities of executing a Will are strict, which helps ensure the Will is a true reflection of the Will maker’s (the “testator’s”) intentions. Two of those formalities deal with witnessing a Will. First, the testator signature is made, or acknowledged, in the presence of two or more witnesses, at the same time. Secondly, a witness needs to attest and sign the Will, or acknowledge the testator’s signature, in the presence of the testator. During the pandemic, this caused some difficulties, as social distancing and lockdowns meant it was not always possible to follow these formalities.
Whilst some probate solicitors and other witnesses came up with solutions to watch the signing of Wills through a window, and have it passed through the window for the witness’ signatures, the law was temporarily amended to aid those that did not have these alternative options.
However, whilst it is refreshing to see the law change to reflect the more modern times, and the increased use in technology, the question of whether modernising the formalities governing the signing of Wills is appropriate looms. There have been concerns that some people may use the increased separation of testator to solicitor as a way of unduly influencing a testator into making a Will on different terms than they otherwise would have chosen. Or there could be unreliable mental capacity assessments at the time of the signing of the Will. Indeed, my colleague, Jak Ward, in his blog in 2021 considered the risks that video witnessing may cause and concluded that it would be better if “the pre-pandemic practice is left unchanged”.
Having spoken to those in the private client department, and having their thoughts on video witnessing, I agree with Jak. The risks are just too high, and even allowing the video witnessing only in emergency situations, may be doing more harm than good. It is only in the years to come will we see whether many of the Covid-Will cases of undue influence or lack of capacity are a result of video witnessing.
If you are concerned about the validity of a Will, contact a member of our Private Client team, and they will be happy to talk to you.