A spike in demand for estate planning amid the pandemic prompted the government to temporarily introduce the concept of ‘virtual Wills’.
The measure was backdated to 31 January 2020 and will remain in place at least until 31 January 2022.
The move was widely welcomed by family law practitioners who had been unable to meet the client demand, due to lockdown restrictions.
Now, however, the witnessing of a Will can be done via video link and, although this simplifies matters for professionals, it does not come risk-free.
Educate witnesses
Gordon Andrews, tax and financial planning expert at Quilter, believes the shift towards remote witnessing can be seen as a positive evolution, and as one that is not going to limit the estate planning process.
He told International Adviser: “Although electronic witnessing is a new concept, it will modernise the way Wills can be created and legally executed, and this ultimately adds flexibility for those undertaking estate planning.
“The introduction of virtual witnesses shouldn’t create any major considerations for estate planning, but there are considerations around how video witnessing should work in practice to make sure it is legally recognised.
“Ultimately, this will add complexity to the process, so people will need to understand what they should and shouldn’t do to ensure that the government guidelines are followed.
“We’ve all experienced the frustration of losing photographs and videos when we change phones and forget to upload them to the cloud, or have simply misplaced our phone altogether. People need to understand what happens after the recording is done, including where they can store it safely and in the correct format so that it can be accessed years after the Will is signed and isn’t lost forever.
“If people have any apprehensions with the process, it is always best to discuss the implications with their legal advisers to discuss ‘what happens next’,” he added.
Extra challenges
But many have questioned the safety of virtual witnessing, as the testator may have been influenced prior to signing their Will.
Kim Jarvis, technical manager at Canada Life, told IA: “A Will is key to ensuring that an individual’s assets are passed on to the right people and can make things easier for those left behind at a very difficult time.
“Current relaxation to allow virtual witnessing should only be used as a last resort and the witness must have a clear view of the will being signed. Since electronic signatures are still not acceptable, the witness is required to physically sign the Will as soon as possible.
“However, it is not role of the witnesses to ensure that the testator has capacity or that they have not been unduly influenced, this falls to a professional. So, whilst the acceptance of the virtually witnessing of Wills from 31 January 2020 is welcome, it does bring challenges for professionals.
“The lack of face-to-face meetings can impact upon the professional’s ability to maintain the relationship; it could be more difficult to judge whether the testator is giving their instructions freely and the testator could be influenced to update their Will without the professional’s knowledge which could in turn affect planning already put in place.”
Risky business?
Besides influencing the testator, other risks may arise from video-witnessing such as fraud, or making sure that pages don’t get lost or misplaced, Sinead O’Callaghan, partner at law firm Cooke, Young and Keidan told IA.
“There has been much debate over the recent legislative change which will permit the virtual execution of Wills from the end of September,” she said. “However, the government has expressed caution, largely due to the capacity for virtual technology increasing the risks of fraud as well as failure to identify issues of testamentary capacity.
“More generally, these increased risks seem likely to lead to an uptick in the number and types of succession disputes going forward.
“In relation to potential fraud, it seems inevitable that it will become more difficult to recognise whether the testator has been subject to undue influence and/or coercion over a virtual connection.
“There are obvious limits to how much a lawyer or witness can see on a remote link and whether, for example, there is someone else with the testator dictating what they do and/or say.
“There may also be risks associated with ensuring that correct and identical Wills are executed by the testator and witnesses. Pages might be lost or misplaced, intentionally or otherwise. This will all open up new lines of attack for those seeking to challenge Wills.
“In a worst-case scenario, any errors in the more convoluted execution process, or issues with the technology adopted, may not be remediable if the testator passes away before valid execution can be achieved – which would mean the Will is not valid.
“This could potentially lead to an increased number of negligence claims,” she added.
