There are concerns that the new statutory instrument enabling Wills to be witnessed virtually during the Covid-19 health pandemic could result in a surge of problems, including the possibility of probate dispute claims.
Perhaps the first challenge presented by virtually-witnessed Wills, which came into effect on 28 September 2020, is the fact that they need the physical signatures of three individuals (the Will writer (testator) and two witnesses).
This can present numerous problems, particularly if the testator is writing a Will because of critical illness or serious infirmity. In such cases, there is clearly a time pressure issue, and with physical witnesses potentially spread out across the UK, it may sometimes be impossible to ensure that documents are shared in time.
Experts are apprehensive over virtual Will outcomes
Furthermore, some leading experts have voiced concerns that the statutory instrument’s origins as an emergency measure mean that it has failed to adequately cover all of the major issues. For example, while speaking (remotely) at Solicitors for the Elderly’s annual conference, Professor Lesley King from the University of Law said that the statutory instrument only mentioned Grant of Probate but failed to properly consider what the process might be in cases where a Grant of Administration is received with a Will. She described the anomaly as “very odd”.
She further warned that remote or virtual Wills present serious problems in terms of ensuring that testators have sufficient mental capacity and are not being made to act under undue influence. In fact, in some cases, she said, it may not be possible to confidently verify the identity of the client. Inevitably, these confusions could lead to a rise in probate dispute claims.
Professor King told the Law Gazette that she felt it would be difficult for Wills solicitors to identify a client by telephone if they don’t already have a relationship with them.
Striking the right balance
Although making a remote Will is hardly an ideal situation, it is important to remember that it is a far better option than simply doing nothing. As such, if there is no alternative, clients should proceed but perhaps look to make a Will in the traditional way, revoking all previous Wills, as soon as circumstances allow. Find out more about how to create a legally binding Will here.
This is because, as well as the concerns listed above, there remain concerns about the potential for hackers to change Wills; it is instructive to consider just how many people suffer as a result of internet banking fraud, which utilises many of the same technologies.
It is also important to consider that although the videos made as part of “virtual” Wills provide valuable evidence of capacity and intention, the increasing sophistication of so-called “deep fakes” mean that even when a Will appears genuine, it could have been doctored.
