Contentious probate solicitor discusses validity of Wills during Covid

Contentious probate solicitor and associate at Holmes & Hills, Rachel Shaw discusses the concerns some individuals are now facing regarding the validity of a loved one’s Will because of the extenuating circumstances brought onto witnessing a Will over the course of the pandemic.

It is long accepted that a Will is an important document as it disposes of the Testator’s entire property and goods. Therefore, it must comply with important conditions as set out by Section 9 of the Wills Act 1837 (as amended by Section 17 of the Administration of Justice Act 1982) in order to be deemed valid.

What makes a Will valid?

No Will is valid unless:

• It is in writing and signed by the Testator, or by some other person in their presence and by their direction.
• It appears that the Testator intended by their signature to give effect to the Will.
• The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the time.
• Each witness either:
  1. Attests or signs the Will or
  2. Acknowledges their signature in the presence of the Testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.

How did Covid-19 impact the validity of Wills?

The limitations placed upon us by the Covid-19 pandemic meant that it was often difficult for the execution of a Will to be witnessed in person. As such, the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 was introduced which defined “presence” within Section 9 of the 1837 Act as including presence by means of video conference or another visual transmission.

We have noticed an increasing trend of Wills not having been executed in accordance with the 1837 Act because its provisions have been misunderstood. Whereas many Wills were often executed in the offices of their solicitors, they have been executed, and not necessarily validly, in testators’ own homes.

Another concern brought about by the effects of the pandemic has been the ability to safely assess whether a Testator has testamentary capacity in order to provide instructions and execute their Will and to assess whether they have been subjected to any undue influence by a third party. When taking instructions in person, solicitors are able to exercise their experience and judgment to detect any undue influence, and if appropriate, obtain a report from an independent assessor as to the Testator’s capacity, if there is cause for concern. The pandemic resulted in many consultations being carried out remotely either on the telephone or by video call when it was more difficult to assess whether or not the Testator was giving instructions of their own volition and without anybody else present within the room. 

What happens if a Will is contested successfully?

If a party is successful in contesting a Will, then the distribution of the deceased’s estate will revert to any previous Will, or where there is no previous valid Will then the Testator will have died intestate and the estate will be distributed in accordance with the Rules of Intestacy.

Find out if Grant of Probate has been issued.

How can Holmes & Hills' contentious probate solicitors help?

When dealing with the loss of a loved one, if you have concerns that their Will may not have been executed in a valid fashion or indeed they may have lacked capacity or been subject to undue influence, please contact the Holmes & Hills' team of specialist contentious probate solicitors for specialist advice.