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 31st January 2020 and, as things stand, will apply to wills made until 31st 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.
Was the document being signed definitely a will?
Who else was in the room?
Can you be sure of testamentary capacity?
Did the witnesses have a clear line of sight?
Were both witnesses present in real time?
Is it the same document?
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.