Challenges to the validity of Wills are not as common as people may think and in ‘normal times’ – if we can remember what they are – they are most commonly based on the argument that either the Testator (the person making the will) was acting under the undue influence (or duress) another person or they didn’t have mental capacity.
However, a Will can also be challenged on the basis that it was not signed and witnessed properly. In modern times, such challenges are rare, particularly with Wills drawn up by solicitors, although there can be scope for challenge with so called ‘home made’ or DIY wills as people can get the formalities wrong.
The COVID-19 pandemic has understandably led to an increased awareness of the need to put a Will in place, to ensure last wishes can be given effect. However, the resultant lockdown has made it somewhat more difficult to ensure that Wills are properly witnessed.
There are reports of people using video calls or social media to have their Wills witnessed remotely. Until now, such Wills would not be valid as Section 9 of the Wills Act 1837 requires Wills to be signed in the presence of two or more witnesses who are required to be in the physical presence of the Testator.
However, over the weekend the Ministry of Justice announced a change to the law to come into force in September which will apply retrospectively to any Wills executed between 31 January 2020 and 31 January 2022. The effect is that such Wills witnessed by video link will be valid, provided the quality of the link is good enough for the witnesses to see and hear everything.
Nicola Turner, senior associate at Napthens and a specialist in contentious probate, says “with the recent lockdown it seems inevitable that there will be a rise in validity challenges in the future. We can expect to see more cases where Wills have been drafted at home, perhaps by family members. Whilst this change in the law will be welcomed by many and offers the comfort of a remote Will making process, it will still be important to ensure that the execution complies with the amended requirements.
Not only can arguments be raised about the witnessing of homemade Wills, but they are much easier to challenge on the more common grounds as the procedures that solicitors should employ to try to make a Will ‘bullet proof’ will be absent from the will making process.
If a Will is invalid, it has no effect whatsoever and the estate of the Testator is then either distributed under the terms of their previous Will, or under the rules of intestacy if there is no prior Will. This can have devasting financial consequences for families – but is something that can be easily avoided by seeking professional assistance.