Where there’s a Will….

Temporary legislation to permit Wills to be executed and witnessed via video link due to the ongoing Covid crisis could leave the whole process open to dispute, says a leading Dorset legal expert.

Jerome Dodge, Partner and Head of Private Client Services at award-winning law firm Blanchards Bailey, believes the legalisation of ‘video Wills’ could lead to questions over capacity, undue influence and the presence of witnesses.

He says he remains uneasy about the introduction of The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, which will retrospectively apply to Wills witnessed from 31 January 2020 and remain in force until 31 January 2022.

Highly experienced Jerome, who specialises in Wills, powers of attorney, tax and estate planning recommends that ‘video Wills’ are used only in exceptional circumstances as a last resort and that the old style ‘window method’ will become the norm.

Used often during lockdown, particularly for people who were shielding, this method involves socially-distanced witnesses standing on the other side of a window, so everyone is in the line of sight and there is far less margin for error.

Legal 500-recognised Jerome, based at Blanchards Bailey’s head office in Blandford said: “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 flexibility in the current circumstances is a practical approach and is to be welcomed.

“However, the process is likely to be procedurally onerous and there are many risks involved with the biggest issue I see arising being the potential for dispute over capacity, undue influence and the whether the Will has been signed in the presence of both witnesses and the testator.”

Jerome added that the logistics of validly executing a Will by video call were potentially quite complex, especially if the requirement for all parties to be in each other’s presence was maintained and would possibly need three separate videos to get the Will executed with a single document circulating in the post.

He said: “I would advise clients not to rush into executing Wills by video link. Indeed, I see it as a last resort – witnessing a Will remotely, whilst it will shortly be possible in law, 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. 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.

“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.”

Blanchards Bailey Associate Lucy Mignot, a specialist in Litigation & Disputes, believes video Wills will be a laborious process and ripe for error unless there is a specialist advisor involved guiding people through the process – and preferably on the call.

She said: “I anticipate issues relating to a lack of due execution will be common as the process is so finnicky.

“More clarity is needed before these become commonplace. For example, what is to happen if the testator were to die during the middle of the process, but after the will has been signed on video (on the basis that one copy of the will is to be circulated)?”

She added: “I have grave concerns relating to the potential for undue influence claims. Ordinarily, one would have witnesses present in person at the signing of a will. If virtual will signing becomes commonplace it will be harder to give an account of the witnesses, a lack of undue influence and to allay the concerns of someone who claims the testator was a victim of undue influence.

“All a witness will be able to say is that they saw the testator on screen and that they signed the will – they may not however be able to see the whole room and who else was there for example.”