Statistics released by the Ministry of Justice and reported in the Times, indicated that the number of inheritance disputes being heard by the High Court reached an all-time high in 2019; a total of 188 cases. This is a 47% increase on the 2018 figure, and up on the previous high of 158 cases in 2016. However, it’s likely that these figures only represent a small proportion of inheritance disputes, as they only account for the cases that actually make it before the Court; they do not account for cases that are settled or withdrawn prior.
The upward trend is likely to continue, particularly given the environment in which people have been making Wills in 2020. When the government announced nationwide lockdown in March, it also added an extra complexity in validly executing a Will. The Wills Act 1837 stipulates that a Will must be signed by a testator in the presence of two witnesses, who then must sign in the presence of the testator. Self-isolation, shielding and social distancing did not easily accommodate these requirements (although there were many creative examples to get around this, such as passing wills through car windows and over garden fences.)
The Ministry of Justice took action in July 2020 and introduced temporary legislation in September 2020 to temporarily allow for remote witnessing of Wills over video-conference. This would apply for a period of two years, backdated to 31 January 2020 – the date of the first confirmed coronavirus case in the UK. Whilst this was certainly a positive step, it also had the effect of increasing the scope for challenging the execution and validity of wills made during this period.
On first assessment, disputes could arise as to:
Loss, fraudulent interception or delay
As one original document must be circulated between testator and witnesses (presumably by post), this could allow for the will to be lost, or intercepted and altered in the periods between the testator and each witness signing. The process will also inevitably take longer, with a risk of the testator losing capacity or dying before the will is validly executed.
Technology and execution issues
The temporary regulations state that the witness must actually see the testator’s pen to paper signing the will. If the camera is incorrectly positioned, the quality is such that the signature is not visible, or the connection drops, there could a case to say the will has not been validly witnessed.
One of the requirements for a will to be duly executed is that the testator is free from undue influence. In normal circumstances it is relatively easy for the witnesses to attest to the lack of undue influence at the time the testator executes the will in their physical presence. With video witnessing, it is unclear how one can ensure there is not another person in the room at the time the testator signs their will, exerting pressure.
Retrospective validation of wills
A testator who executed a Will witnessed via video conference, in the time after January 2020, but before the announcement of the retrospective legislation, now find themselves with a valid testamentary document, when it would previously have been invalid.
While the guidance states that video-conferencing witnessing should only be used as a last resort, there is no doubt that people will use this method to execute wills, and it will be interesting to see if any disputes surrounding remotely witnessed wills make their way before the Court. However, to avoid such risks it seems prudent, for those who are able, to execute a new will witnessed in person, when it is safe to do so.