If you could make your Will entirely online, from the comfort of your own home, without having to meet any other person or sign a single physical document, would you do it?
In October, we reported on Lockdown Wills and how the Government has recently changed the law to allow Wills to be witnessed via video link software such as Zoom or Skype during the Covid-19/coronavirus pandemic.
Although this law is only supposed to be temporary, some have welcomed the changes as the start of vital innovations within the Will writing sector – if Will writing was as simple and straightforward as possible, surely more people would do it, reducing the heartbreak and stress that is often caused when someone dies intestate. However, others warn that making and executing a Will over the internet could result in flimsy and easily challenged Wills.
Here, we talk about the possibility of making a Will 100% online – what are the challenges involved? Are online Wills the future or are there just too many things that could go wrong?
The challenges of making an online Will
There are strict legal requirements that must be followed for a Will to be valid and it is possible to challenge a Will after the testator (the person who made it) dies. If the challenger successfully proves that the testator did not fulfil the right legal requirements then their Will could be set aside and their final wishes ignored.
At the moment, it is not possible to make a Will entirely online because some of the legal requirements traditionally rely on you, your witnesses and your Will solicitor being physically present during the process. There would need to be some permanent changes in the law to allow online Wills to become mainstream. Although the Government has relaxed some of the legal requirements on witnessing, they have intentionally refrained from changing other parts of the law (such as signature requirements).
So, what are the issues that need to be overcome before online Wills can become the norm?
The execution (creation) of a Will must be witnessed and signed by two independent witnesses. The witnesses must have a ‘clear line of sight’ to the Will as the testator signs it. If someone can prove that the witnesses did not have a clear line of sight, the Will has not been executed properly and could be held invalid.
Typically, the witnesses must physically be in the room with the testator to fulfil this requirement. However, since the arrival of the coronavirus/Covid-19 pandemic, getting a Will witnessed in person has become increasingly difficult and dangerous, especially for elderly and vulnerable people. Therefore, the Government has temporarily changed the law to allow Wills to be witnessed over video link software such as Zoom and Skype.
Some people have expressed concern that the new rules on witnessing could provide opportunities for undue influence where a testator is forced or coerced into making a Will. This is because it can be hard to tell whether there is someone in the room with the testator placing pressure on them.
This risk can be mitigated by consulting a specialist Will solicitor – they will have the experience needed to spot the signs of undue influence. The Government has also published extensive guidance on how to comply with the law which includes recording the live witnessing process in case the Will is ever challenged.
The current rules on making a Will require the testator and witnesses to physically sign the Will with a ‘wet ink’ signature. It is not yet possible to execute a Will online using an ‘e-signature’ due to concerns about abuse of process. For example, research suggests that it may be easier to forge a Will or commit fraud if e-signatures are allowed.
However, this is not to say that electronic signatures will never be appropriate for Will writing. E-signatures are already used in many areas of law. They have even recently been extended for use in conveyancing transactions – another area where their use has traditionally been controversial.
Getting legal advice
There are some concerns that conducting the Will making process online could reduce the quality of legal advice testators receive. The risk is that the resulting Will may:
- Be full of errors
- Not truly reflect the testator’s true wishes
- Generally not be in the testator’s best interests (for example, if opportunities to reduce Inheritance Tax are missed).
However, if we have learnt anything from the Covid-19 pandemic it is that we are able to operate effectively despite the disruption to our ‘normal’ ways of working. Using phone calls, email, and technology solutions such as video calls, we are still able to offer the highest quality of legal advice, even if we cannot meet with you in the traditional way.
Assessing testamentary capacity online
One strict requirement of making a Will is that the testator must have sufficient mental capacity, referred to as testamentary capacity. This means that the testator must understand:
- What making a Will means and its effect
- How much money and property they own
- The effect of the Will on its beneficiaries and people who would inherit if the testator died without making a Will
This means that people who have conditions such as dementia or who have had a brain injury may not be able to make a Will. It is often up to specialist Will solicitors to assess testamentary capacity and advise accordingly. But is this possible online?
It will likely depend on the individual circumstances of the case. In most matters, yes – the solicitor will be able to satisfy themselves that the testator is of sound mind by asking careful questions and making use of technology, such as video calls. However, if the solicitor has concerns, they should take great care to follow ‘the golden rule’ which states that where a testator is elderly or suffering from a serious illness, the Will should also be witnessed and approved by a medical professional. Depending on individual circumstances, it may not be appropriate to conduct this process entirely online.
So, will making an online Will be possible in the future?
In the future, it seems likely that making a Will entirely online will be possible and it will be safe. We still have a way to go as the Will writing procedure will require some changes in the law. However, it seems that the Covid-19 pandemic may trigger greater appetite for reform.
As with most matters, whether an online Will is right for you or your loved one will come down to individual circumstances. For example, if there are serious risks of undue influence or that the testator lacks testamentary capacity, doing the entire process online may not be appropriate. However, for the vast majority of straightforward Wills, there is no reason why making a Will online should not be possible in the near future.
Talk to us about making a Will
At Devereux and Co, our expert Will solicitors in Bristol are here to provide simple, practical advice about making a Will.