Prior to the pandemic, the rules surrounding the witnessing of Wills hadn't changed since the Wills Act 1837. Two witnesses were required to physically witness the testator’s signature and this provided a degree of reassurance to all, particularly vulnerable testators. These witnesses could be called upon to provide evidence as to who they saw sign the Will, who was present in the room and the mental capacity of the testator. These rules haven't changed and this is still the best way to execute a Will.
During the pandemic additional legislation was introduced to enable Wills to be witnessed via video link (on Teams or Zoom for example) and this provision has been extended until January 2024. While this legislation was well received, especially during lockdown, it is fraught with potential issues and these issues are escalated further when there could be questions over capacity, for example if someone suffers from dementia.
Initially it was thought that these rules might be taken advantage of by the most vulnerable members of society who, even asking neighbours to come and stand at a distance on the drive to witness a Will was thought to be too risky, but thankfully it hasn’t been used as frequently as perhaps it was thought.
There are many issues with virtual signing which could lead to the Will being declared invalid and, whilst the legislation is valuable and serves a purpose, it should only be used as a last resort by an experienced professional.
When we act for a client who has dementia the diagnosis in itself is not necessarily a bar to making a Will. A person can make a Will if they have the necessary testamentary capacity to do so and a diagnosis is not an automatic assessment of mental incapacity. There are many people with dementia who have the capacity to make a Will, however there is a higher risk of someone challenging the Will further down the line by claiming that that person did not have the capacity or was unduly influenced into making the Will.
When an experienced practitioner is taking Will instructions they will make an assessment as to testamentary capacity and, if they are in any doubt, they will seek a medical opinion. Quite often that medical practitioner is also asked to be a witness to the execution of the Will. If this is done in person the medical practitioner will meet the testator and see how they are in their current environment. They will know who is in the house with the testator and it will be much easier for them to pick up on any issues with capacity and undue influence. They will also be able to confirm with certainty how the testator was in general when they signed the Will.
If a Will is being witnessed virtually, while that assessment of capacity can still be made, the valuable additional information about who was present and how the testator really seemed is much harder to gather because the witness is simply looking at the person on a screen instead of in real life and can’t see what is going on behind that screen.
The process of virtual witnessing is cumbersome and this could be very difficult for someone with dementia to navigate, not least because they are more likely to struggle with technology. When the testator is signing the Will they should be on their own to ensure no undue influence is being exerted but this might be difficult if they are struggling with technology.
Each time anyone (the testator and then both witnesses) signs the Will, everyone has to be ‘present’ albeit virtually. It needs to be very clear that it is a virtual signing and all parties need to see that it is the Will being signed in the first place, this can involve a lot of moving of cameras and can be quite complex logistically, especially for someone with dementia. The Will needs to be sent to each party and then a new virtual signing meeting held for each signature. This can take a long time and be confusing for someone who is struggling with short term memory.
There is no doubt that the legislation allowing virtual signing was well needed and welcome but it should only be used as a last resort and really should be avoided for someone with dementia unless there is no other option. Taking advantage of this legislation when it's not 100% necessary could lead to claims on the death of the testator alleging undue influence and lack of capacity which could lead to the Will being declared invalid. The evidence from a virtual witness is unlikely to as good as the evidence from a witness who was physically present.