As the pandemic pushed the annual death rate above average, research has found that it did prompt people to make a will. This is a positive move because it provides certainty around an individual’s wishes for their estate.
One of the biggest challenges though has been the execution of the will which requires the testator – the person making a will – and two witnesses to be present at the same time. Just as with so many activities that were performed in person, the signing of wills had to change. A temporary amendment to the Wills Act came into force in 2020, allowing wills to be witnessed remotely between January 2020 and January 2024.
There were understandable concerns that wills prepared in this period could be open to fraud or error and subsequent disputes. As we emerge on the other side of the pandemic with lockdown rules over in England and relaxed in Wales, it is still too early to know what effect this change to the legislation will have with regards to challenges arising from a person’s will.
However, it is not difficult to see where the potential challenges could lie.
Execution of the will
The validity of a will can be challenged on the basis that it was not properly executed, i.e. that it was not signed by the testator in the presence of two witnesses who also sign the will in the presence of the testator. In practice, these three people are usually in the same room.
The change to the legislation as set out above, to take into account social distancing, has meant that some wills have been witnessed through a window, or via video link. That throws up all sorts of concerns about what document was actually being signed, or what was and was not in frame at the critical moment of execution.
The pandemic has seen stringent restrictions imposed on people and we have been limited to spending time only with those in our own household. In addition, many vulnerable and elderly people have been shielding, which has meant that they have had minimal contact with the outside world. The result has been that some individuals are wholly reliant on a family member or a carer for food or medication and their social interaction.
It is easy to imagine a situation in which a vulnerable person could be pressured into changing their will to leave their estate to a certain person upon whom they have come to rely. If instructions for the will are taken via video link for example, it would impossible to be certain that somebody is not lurking out of shot of the camera, putting pressure on the testator to give specific instructions.
This could give rise to a challenge to the will on the basis that it was procured by undue influence.
The true picture of the effects of the pandemic in so many ways has yet to be revealed, but I envisage that in the realm of wills and estates it will have only added to the number of estates being challenged.