Remote Will Witnessing and the Potential for Disputes

In response to government restrictions enforced as a consequence of the COVID-19 pandemic, the Ministry of Justice confirmed a temporary amendment to the Wills Act 1837, enabling witnessing to be undertaken by means of videoconference or other visual transmission.

The amendment came at a time when the country was experiencing a huge influx in the number of people making or updating wills and, while it offers a modern solution to the question of ‘formally witnessing’ a will under lockdown restrictions, it will likely result in an increase in disputes over the validity of wills executed in this way. This could present some new challenges for estate law and its practitioners in the years to come.

Estate administration is already complex business and challenges to the validity of wills can add years to the administration process. Remote witnessing brings with it a number of risks that could arise from the circumstances in which wills are created, and these have the potential to delay probate even further.

What are the Risks Raised by Remote Witnessing of Wills?

• The amendment could lead to a rise in contentious probate cases because it will be harder for solicitors to ensure the safety of their clients against undue influence and/or fraud where the process takes place remotely.
• There is the potential for technological failure. Internet connection, data protection and storage are just a handful of the additional burdens presented by the move to technology.
• Delays are likely to be expected when a will is passed between people for remote signature. Documents could get lost in the post or fraudulent alterations could be made to the Will.

Ian Bond, chair of the Law Society’s Wills and Equity Committee, provides helpful insight into the Government’s efforts to reform the law in this area in an article for LexisNexis. “The task is of course huge and the timescale very short. Caution is essential in this area of reform as this is a highly technical area of law and can have massive impact for generations to come. Swift action in this area could end up doing more harm than good.” Clear guidance has therefore been outlined by the Ministry of Justice, STEP and the Law Society that urges practitioners and intending testators to exercise caution if they decide to participate in the remote witnessing of a will.

The pandemic has created a landscape that will continue to encourage innovation in every industry and remote will witnessing is just one way in which the legal sector has embraced change and undergone digital transformation. Although we are likely to see a rise in contentious probate cases where the validity of wills witnessed using remote technology is called into question, this kind of transformation is necessary to keep pace with competitors and to learn from industries revolutionised by technology.