The legal profession is currently facing unprecedented challenges due to the coronavirus situation, which is fast moving and having far reaching effects on the world as we know it.
One area where difficulties can be foreseen is the signing and witnessing of wills. This may result in an increase in will challenge claims. There are four legal ways, in which a will can be challenged. I discuss them below, debating some possible practical issues, which may arise as a result of the current lockdown.
1. Lack of proper formalities – a will needs to be in writing. It has to be signed by the testator (the person making the will), or by some other person in the testator’s presence and by their direction. It must appear that the testator intended by their signature to give effect to the will. The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time. Each witness must either attest and sign the will, or acknowledge the testator’s signature, in the presence of the testator.
To date, the UK Government has not enacted any emergency legislation to relax the rules for the signing of wills at this time. However, the position is still under review with the Government stating: “the constraints of the COVID-19 situation must be balanced against the important safeguards in the law to protect elderly and vulnerable people in particular against undue influence and fraud”.
Interestingly, in New Zealand, and even more recently in Jersey, a temporary law change has been made. Both jurisdictions now allow wills to be signed and witnessed using audio-visual links (for example, Zoom, Skype, Facetime etc). The new legislation relaxes the formal requirement for two witnesses to be physically present when a will is signed and therefore allows people in hospital, care homes and those in isolation to execute a new will without breaching social distancing rules.
During the current crisis, we are reminding clients of the importance of the testator and witnesses remaining safe when signing wills. The signing can take place outside, for example on a wall or car bonnet, with everyone keeping socially distanced. All persons signing should also be using different pens.
There has been some discussion over electronic signing and witnessing of wills, but this poses its own problems. For example, would the parties have to agree a time for signing to take place and then all log on to one of the audio-visual platforms? Would the testator need to read the will over to the witnesses and would they then sign a separate copy of the will via video link? In Australia, new laws in place until the end of the year, will allow wills to be witnessed and signed electronically, rather than in person. It will be interesting to see how this works and if any developments arise in this regard in the UK in coming weeks.
2. Lack of testamentary capacity – i.e. whether the testator understood that he or she was making a will and had the necessary mental capacity to do so.
A three part test for testamentary capacity was laid down in case law. It sets out that a testator has capacity if:
i. he/she understands the nature of making a will and its effects;
ii. he/she understands the extent of the property of which they are disposing;
iii. he/she is able to comprehend and appreciate the claims to which they ought to give effect and is not affected by any disorder of the mind that influences their will in disposing of their property.
It may prove difficult assessing whether a client has capacity at this time. Not meeting someone face to face can hide underlying issues. Even for experienced will writers, speaking to a client over the phone, or indeed via video-link, is generally not as effective as meeting with them in person in order to form a view on their mental capacity.
The new emergency legislation in Jersey, which unless extended will expire on 30 September 2020, insists that if remote witnessing is used, the lawyers concerned will have to take steps to assure that any client who makes a legal document has appropriate mental capacity (and is not under duress – see below).
3. Lack of knowledge and approval – i.e. the testator must know and approve the contents of his/her will and appreciate the extent of what he/she is giving to whom. It is often closely related with testamentary capacity. However, recent case law highlights that “want of knowledge and approval” allegations, as they are also known, can and will succeed in the absence of establishing that a testator lacked testamentary capacity. The Courts will consider knowledge and approval as a separate issue.
Stand alone, this ground for challenging a will is unlikely to be particularly affected by the coronavirus situation. However, as it is closely linked to mental capacity, the same issues may apply. The Court is also interested in “suspicious circumstances” hence such claims often go hand in hand with the fourth will challenge ground, undue influence.
4. Undue influence – for this challenge to succeed there must be coercion or fraud. There is a very high threshold to challenge a will on the basis of undue influence. It is rarely brought as a claim on its own. Undue influence is more commonly added to another challenge, for example lack of knowledge and approval.
If you are challenging a will on the basis of undue influence, you have to prove that the person making the will was influenced to the extent that their free will was completely oppressed. This can happen over a period of time, i.e. by way of a “drip, drip” effect. Direct evidence of undue influence is unusual, given that the very nature of the act means that it happens behind closed doors. The lack of evidence can of course be an obstacle for a challenge of this kind. Claims for undue influence in disputes over wills are especially difficult to prove.
If clients are being “met” by way of audio-visual platform, it may be difficult to tell if somebody else is present in the room with them, for example telling them what to say. There is no obvious solution to this. When meeting face to face, it is good practice to meet the client alone, so that when taking their will instructions, they are not being influenced by any other person.
A growing number of clients wish to make a new will or update their existing will under current lockdown arrangements. To conclude, due to the various practical issues set out above and the increase in will instructions at this time, it seems likely that will challenge claims will increase following the COVID-19 situation which is less than ideal for bereaved families. That is why care must be taken by both those writing wills and testators, regardless of the difficulties that the current lockdown situation poses.