Are Wills Entering the Digital Age?
Due to the coronavirus pandemic many different industries have been forced to modernize. Client appointments have moved to Zoom and conversations which would’ve happened face to face are happening via email. The legal industry has always tended to be a little archaic and has had to be dragged kicking and screaming into the modern world on a lot of different occasions. In fact 100 years ago I wouldn’t be writing this blog, women were not yet practicing solicitors as the profession was not deemed a suitable place for women.
So when it comes to Wills, can the law actually keep up with the times?
In order to create a valid Will in England and Wales we need to look to the Wills Act 1874. No, that is not in fact a typo, we are still working from a 147 year old act in order to deal with Wills. The relevant section of the act is section 9 which dictates when a Will is valid. This section states that a Will should be in writing, signed by the person making the Will and in the presence of two witnesses.
It is this final strand which has been challenged by the pandemic. How can the person making the Will be in the presence of two witnesses if the country is in a national lockdown. Well according to a statutory instrument which was enacted in September 2020 Wills can now be witnessed virtually.
According to the advice by the Law Society this should only be done as a last resort and if the situation dictates that an individual very urgently requires a valid Will.
You may be thinking fantastic, this will save me a journey to a solicitors office in order to sign my Will or will save me pestering my neighbors to act as witnesses, but this isn’t really the case. It is not as simple as a Zoom call in order to validly witness a Will, in fact three different Zoom calls may be required so that all parties witness each other’s signatures. Further, there is a general wariness amongst solicitors about this method of witnessing.
Wills are vitally important documents and contain the wishes of someone who cannot advocate for themselves. It is therefore not uncommon for people to try and take advantage of this. Whether that be by influencing a person to include them in their Will or by fraudulently creating a document. One of the checks on this sort of behaviour is having two independent witnesses, witness the signature of the document. If the witnesses are able to do this digitally it may well increase the chances of fraud.
Whilst there are a lot of things that need to be modernized surrounding Wills – for example the recognition of the rights of a cohabitee, I do not believe digital witnessing in its current form is one of them. Unless there was some way to check that a person making a Will was alone in a room, not being influenced by any individual and the witnessing could take place without multiple calls this is not the positive step forward into the digital age it could have been.