Disputed wills and Covid-19

11th March 2021

A person may decide to make a will for a number of reasons, including for tax planning purposes, or to simply ensure that their estate is divided as they wish, rather than as the rules of intestacy dictate. The Covid-19 pandemic has highlighted the importance of making a will, as it has reminded us of the uncertainties that life can throw at us. This has caused a significant increase in the number of will drafting instructions that solicitors have received. However, with the ‘rush’ to make wills, and the shift in the way that they are being drafted and executed, should we anticipate an increase in claims against the estate made by disappointed potential beneficiaries?

Validity of a will

In order to make a valid will, the person making it (known as the testator) must have the necessary testamentary capacity and must have clearly intended to make a will in the absence of undue influence and fraud. Once it has been drafted, they must sign their will in the presence of two or more witnesses present at the same time, and each witness must then sign it in the presence of the testator and each other.

These strict requirements were cause for concern when we went into lockdown last year, and people were told to remain home and only leave for essential purposes. Care was needed to ensure that wills were being validly drafted and executed, and in September 2020, the law was updated to allow use of video calls to witness the signing of wills.

However, whilst solicitors remain cautious of the changed rules, it has become more challenging to ensure that they are being upheld, leaving the validity of wills sometimes open to question. This is even more the case when a will has been drafted and executed in the absence of solicitors. A will can be disputed for a number of reasons, all of which can be further complicated by the effects of the pandemic.

Testamentary capacity

Solicitors play an important role, when drafting a will, in ensuring that their client has the relevant testamentary capacity and they should be able to show that their client’s capacity has been considered. With the increased use of telephone and Zoom, rather than in person meetings, it can be more difficult to spot the signs that may lead to doubts over capacity, which may result in the validity of the will being questioned.

Undue influence

They also play a role in monitoring the relationships between the testator and other people around them, to ensure that the will reflects the testator’s true wishes, not the wishes of someone else. Prior to the pandemic, will drafters were able to meet their clients face to face, and develop a broad understanding of these relationships. However, with the introduction of virtual meetings, it is difficult to know who the testator is with and what the circumstances really are. Who is unseen behind the camera? The testator could be vulnerable to undue influence, which could give rise to a claim against their estate.

Fraud and forgery

While lawyers can still certify their client’s identification, the reduction in face to face contact can lead to doubts surrounding the true identity of their client in circumstances where, for example, the testator does not have access to Zoom facilities. We will also undoubtedly see a sharp increase in the number of people who choose to make their own wills at home. This could create a very high risk of fraudulent wills being produced, with the attendant question of fraud. The number of claims against estates on the basis of fraud may therefore increase.
We would always recommend that you instruct a suitably experienced solicitor to draft your will, in order to avoid situations that may lead to costly litigation and the breakdown of relationships after your death. But if you have any queries in relation to the validity of a will, or if you suspect that the rules have not been adhered to, please don’t hesitate to contact us.

Your Birmingham wills and disputed wills team are: Laura Banks and Beth King-Smith.

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