An expert view: the small print of executing Wills by video link

The government announced in new legislation laid on 11 January 2021 an extension to the temporary legislation introduced in 2020 to allow people executing and witnessing Wills to use video link to do so. The legislation extends measures brought in during the pandemic to apply to Wills witnessed from 31 January 2020 up to January 2024. Jerome Dodge, Partner and Head of Private Client Services at Blanchards Bailey, shares his views on the changes and video wills:

“Generally, I view the current and longstanding law as being very rigid when it comes to the formalities needed for a Will to be validly executed. So, on the face of it, allowing continued flexibility in the current circumstances is a practical approach and is to be welcomed.

However, the government was slow to introduce temporary legislation to cover the COVID pandemic and underestimated the impact of these measures (hence the updated changes now having an end date in 2024), and I feel the boat was somewhat missed.

The biggest issue I see arising remains the potential for dispute. By opening up the scope for “video Wills” to be legalised retrospectively, there will be obvious issues such as questions arising over capacity, undue influence – was a beneficiary standing over the testator just out of camera shot saying “you will sign this”, for example? Also, there are often disputes over whether the Will was signed in the presence of both witnesses AND (as this is often the point that gets missed) that both witnesses signed in the presence of the testator – the person making the Will. There is no suggestion that this latter requirement will change.

By maintaining the requirement for all parties to be in each other’s presence, apparently each witness will need a copy of the Will so that all three parties can sign the document in the presence of one another. It is either that or there will need to be three separate video calls (two if witnesses live together) to get the Will executed with a single document circulating in the post! The logistics of validly executing a Will by video call are potentially quite complex!

In my view, there is a far more certain option available for those that wish to execute a Will whilst shielding. That is to arrange for the witnesses to stand the other side of a window, so everyone is in the line of sight. This appears a happy medium of avoiding physical contact whilst avoiding “running the gauntlet” of the new legislation – whatever that might ultimately be. It depends entirely upon the needs of the individual and the degree to which they are shielding, whether by necessity or personal preference.

Certainly, I advise clients not to rush into executing Wills by video link. Indeed, I see it as a last resort – witnessing a Will remotely should only be embarked upon where there are exceptional circumstances.

Obviously, if it is absolutely necessary for a Will to be executed remotely, I strongly recommend speaking to an expert beforehand. We can assist and advise on the process and how best to go about it. “Homemade Wills” are already fraught with risk both in terms of their effect and validity. Without suitable advice, executing Wills by video call gives even greater scope for things to go wrong."

Whilst extending the execution of Wills by video call obviously provides greater flexibility for those that need it, clearly there are still risks involved. Disputes over improperly executed or invalid Wills can be costly, complex and stressful. In that regard, prevention is better than cure – if you are considering using a video call as part of your Will writing process, seek professional advice before doing so.

Call Blanchards Bailey’s award-winning Private Client team on 01258 459361 for the most up to date advice on how to ensure your Will is properly executed.