COVID-19 – how to flatten the litigation spike into a curve

The COVID-19 pandemic has been a mortality check for many of us, leading to a huge increase in the number of people seeking advice on will writing.

For a will to be valid, it must be executed in accordance with S9 of the Wills Act 1837 (the “Wills Act”); meaning the execution of the will must be witnessed by two independent witnesses.

Until now, it has not been possible to witness the execution of a will via a video-call. The witnesses had to be physically present at the signing of the will and, since the outbreak of the pandemic, follow strict social-distancing guidelines. This has proven extremely challenging for people shielding and self-isolating.

This week, the Ministry of Justice introduced new legislation to allow the execution of wills to be witnessed via video-link, as an alternative to witnesses being physically present.https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing

This legislation retrospectively applies to wills made since the 31^st January 2020 and, as things stand, will apply to wills made until 31^st January 2022.

We’re already seeing claims over inheritance rise since the start of the pandemic and we predict that these changes in legislation could lead to more potential claims.

Main concerns:

Was the document being signed definitely a will?

• How can the witnesses, if they’re not physically present, be sure that what the testator is signing is actually a will? It would make defences of forgery/lack of knowledge a lot more difficult if none of the witnesses can confirm they’re 100% certain that what they saw was a will.

Who else was in the room?

• How can you verify who was in the room at the time of the signing? The risk of undue influence on testators will increase and lead to challenges in any defence on this point. There could be someone off camera directing signing or perhaps preventing changes that the testator may have wanted to make at the last minute. The witnesses will not be able to give evidence to say 100% that there was no one else in the room at the time of signing.

Can you be sure of testamentary capacity?

• Witnesses are likely to spend less time in the presence of the testator over video-call than if they were in person and are unlikely to be able to give as much evidence about how the testator appeared and whether they seemed lucid/confused/anxious, etc. Body language is often a clear indicator of how someone is feeling and this is harder to judge over camera as subtle differences in a person’s manner may be put down to difficulties adapting to technology, rather than concerns regarding health and willingness to sign.

Did the witnesses have a clear line of sight?

• There needs to be a clear line of sight. What happens if one person has a poor video connection? Could they be said to have a clear line of sight in all circumstances?

Were both witnesses present in real time?

• Two or more people must witness the testator signing the will in real time, meaning the testator, and both witnesses must be on the video call at the same time – not one and then another. People may not realise how important this is and that if they fail to comply, this could cause the will to be invalid.

Is it the same document?

• How can witnesses be certain that what they are witnessing was the same document signed by the testator? Also, the testator only need show the front page of the will and the page they are signing to the witnesses over video-link. There is the potential for a person delivering the will to witnesses to insert pages into the will for their own benefit.

How can you ensure a will is valid?

Ensuring a will, which has been signed over video-link, is valid may prove difficult, but, in some circumstances, this may be the only way of executing the will and a will executed over video-link is, of course, better than no will at all. However the will is prepared and executed, those making wills need to be alive to the reality that the will may well be challenged at a later date and their will file scrutinised by litigation lawyers advising claimants.

Comprehensive notes must be taken as they should be with the execution of all wills to safeguard against future claims, and the video-link execution must be recorded and safely stored.

Larke can help…

Larke, produced in collaboration with IDR Law, is a standalone software system that can run alongside your current will-making process and, as well as providing a wealth of prompts and risk reducing features, it has the built-in facility to upload the recording of the witnessing into the Larke file, which will then be automatically attached to the Larke statement it produces to assist in keeping your will and will-file safe.

Larke is an intuitive cloud-based software solution that tracks each will through instructions-preparation-execution. Larke includes prompts on individuals who can bring claims on a given will to ensure effective and complete note taking; allows all wills to be tracked and allows you to upload documents onto any given will file including your notes, previous wills and any execution recordings – all stored securely.

The process of a contentious probate claim usually starts with an enquiry called a Larke -v- Nugus which seeks, through a long list of questions, to get a clear picture as to how the will was executed and the role of the will drafter, maker, witnesses and interested parties.

On execution, Larke automatically produces a Larke statement that sets out all the information usually required to be provided by a Larke -v- Nugus. Every one of your will files will have a statement, saving time and wasted costs in future and ultimately making the wills safer from challenge. It can also be signed electronically by the will maker.

Take a look at www.larkeonline.co.uk. Whether a will is witnessed by video-link or executed in the conventional way, Larke helps to ensure a will is executed properly, thus helping protect against any future claims.

Government advice remains that where people can execute wills with witnesses physically present, they should do so.

At IDR Law, we recommend that wills being executed over video-link are bound rather than stapled and that the testator and both witnesses sign each page of the will, to help reduce risk of forgery.

IDR Law is an approachable, boutique, firm and the only one in the country dealing solely with inheritance dispute resolution. Whether you’re a law firm, or an individual who feels they would benefit from our expertise, get in touch here, email us at [email protected] or call on 01423 637050.