The potential risks virtual will witnessing may bring
Following on from our article at the end of July, ‘Witnessing Wills Virtually in an age of Covid’ where we discussed the change in legislation which allows for Wills to be witnessed remotely, we will now take a look at the potential risks virtual witnessing may bring.
The formalities of the Wills Act 1837 have been in place for almost two centuries and are well recognised. The change in legislation will increase the risk of errors being made and this will increase the potential for disputes over the incorrect procedure being used.
Deliberate fraud is a possibility that could result from Wills being witnessed remotely. There is concern that there is an increased risk of Will-makers being subjected to undue influence or coercion from the inability to see those off-camera who are present during the signing process. It is harder to guard against such risks when the procedure is not being carried out face-to-face. It is also difficult to properly judge capacity virtually. These factors could render a Will invalid.
"After the testator signs the Will virtually, the Will needs to be sent to the witnesses for signature. The Will could be lost or the testator could pass away before the witnesses are able to sign. This would raise questions over the Will’s validity. Equally, claims could arise that the Will received was not the Will which had been signed by the testator."
Criticism over the amendments has focused on how the virtual Will signing process does little to help those who really need urgent Wills, such a someone in a hospital, a hospice or the elderly. For the Wills to be witnessed virtually, the participants will require technological know-how and stable access to the internet to complete the meeting and properly execute their Will in accordance with the requirements.
Often, technical difficulties such as connection problems and screen freezes occur and if this were to happen during the witnessing of a Will and the signing is not witnessed by all participants, then there could be argument that the signing did not comply with the requirements of the Wills Act.
The Government has advised that Wills should only be signed virtually as a “last resort” and where there is no alternative available. The validity could also be disputed on the basis that the virtual signing was not necessary and it was not a last resort.
It is anticipated that there will be an increase in disputes over the validity of Wills executed in this way so all such signings should be approached with caution.
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All information in this update is accurate at the time of writing. It is meant for general information only and is not legal advice.