Risks following the amendment of the Wills Act 1837
Despite the legislation included within the Wills Act 1837, wills were commonly challenged for various reasons up until lockdown began. Common reasons include a testator’s lack of mental capacity when creating the will and undue influence.
In 2019, the number of will disputes rose from the following year, and in 2020 the figure is predicted to skyrocket. The reasoning for this is that the amendments to the Wills Act 1837 have opened up new avenues on which wills can be challenged.
For example, once a testator signs their will in the video presence of their witnesses, the will still needs to be sent to the witnesses for signature. Guidance states the will should be with the witness within 24 hours, but local lockdowns may prevent this. How closely should the document’s journey be recorded? And if, during the delay, the testator dies, what happens or loses mental capacity?
Alternatively, even if the will is successfully signed and witnessed via video call, who can say whether the testator was coerced into signing the will by someone behind the camera? Should they be expected to lock themselves in a room and offer the witnesses a 360 view of the room before signing?
And finally when should the will be dated? When the testator and witnesses have signed it, or when the solicitor receives it back days later?
Suffice to say, the amendments to the Wills Act 1837 will likely lead to some interesting legal challenges.