Virtual wills ‘Problems In Urgent Cases

Will

A probate specialist has highlighted a range of problems arising from virtually-witnessed wills, saying the multi-stage process is ‘pretty unattractive’ for practitioners.

Professor Lesley King, professional development consultant at the University of Law, said the remote system can cause delays because the will has to be physically signed by three people – the testator and two witnesses – who could be scattered across the country.

Speaking at Solicitors for the Elderly’s annual conference, King said: ‘If you’ve got a testator who’s critically ill and they sign the will, it then has to be sent to the witnesses, who must sign it in the virtual presence of the testator. Until they’ve done that, it isn’t valid. If you’re going to post it, that’s a day or so delay. This, to my mind, makes the procedure pretty unattractive.’

She added that the statutory instrument legalising remote witnessing – which came into force on 28 September – is ‘very odd’ in relation to grants of letters of administration.

‘If you already have a grant of probate, that grant of probate won’t be upset if you subsequently discover that there is a remotely-witnessed will. But it’s very odd because [the SI] only talks about grants of probate.

‘Apparently there was a policy decision that if somebody had got a grant of letters of administration on intestacy it should be possible to upset the grant on intestacy and substitute a remotely-witnessed will. But there’s nothing about what happens about if you get a grant of letters of administration with a will. Reading the statutory instrument strictly, it only talks about grants of probate. But there’s clearly no policy justification.’

On taking instructions for a will via telephone, King warned practitioners to assure themselves of capacity and lack of undue influence, and to make sure they can identify the client.

‘I must say I think it is quite difficult to identify a client telephone when you don’t already have a relationship with them,’ King said. Solicitors have also complained of technical issues with the system and a lack of coordination between the different probate forms.

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