Lockdown wills could prompt a wave of contentious probate claims, solicitors have warned, as video conferencing sows confusion about the witnessing of documents.

The Wills Act 1837 requires wills to be signed in the presence of two or more witnesses. In guidance published in April, the Law Society of England and Wales – unlike that of Scotland – said wills must not be witnessed via video link, as physical presence is required by the act.

However, solicitors have said there is ‘no doubt’ that wills have been drawn up and witnessed via webcam during lockdown. Questions around witnesses’ line of sight could also be raised as a result of social distancing measures.

Elizabeth Armstrong, managing director of Darlington-based Latimer Hinks, said: ‘There are firms out there saying that they are witnessing [wills] over Zoom and then getting people to sign the papers after lockdown…The risk there is what if the person dies in the meantime, or has a stroke?

‘There could be a lot of people with potential contentious probate matters further down the line.’

Duncan Bailey, partner at independent firm Brabners, predicted a spike in probate disputes in the wake of the pandemic. ‘It is inevitable some people have made a will in a rush and they haven’t considered claims and moral duties that they should have done,’ he said.

‘There may be some cases of claims against wills because they were made during Covid-19. For example, saying “I’m pretty sure this was made over Zoom, so isn’t valid”. These claims would try to pass the burden onto the people relying on the will.’

The government is currently considering how to facilitate will making during the pandemic, and an official announcement is expected this month. The Ministry of Justice said it is also considering wider reforms to will making and will request a review from the Law Commission on the law around deeds.

Martin Holdsworth, founder of contentious probate specialist IDR Law, welcomed legislative change. ‘People simply don’t make wills – two out of three people are without a will. There has to be some way of making it easier,’ he said.

Source:  Jemma Slingo – Law Society Gazette 8th July 2020

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