Video witnessing of wills ‘only a small proportion’

To adapt to the lockdowns of 2020 and 2021 in response to the global pandemic, the Ministry of Justice allowed video witnessing of wills to take place, Following consultation with its members, the Law Society of England and Wales found that only a small proportion of practitioners elected to use this method of witnessing a will.

The Law Society surveyed more 720 will practitioners in order to understand how firms had used this capability during lockdowns and whether it should be extended. Video witnessing is permitted until January 2022, at which point the Ministry of Justice will need to consider whether to extend the statutory instrument that allows it.

Most of the 722 respondents who took part in the survey have been in the business of will writing for 10 years or more and work in small firms. Most of them had drafted wills throughout the lockdowns in 2020 and 2021 – some 95 percent in total – but only 14 percent used video witnessing.

Fifty-eight percent will continue with video witnessing

Of those who chose to use video witnessing, 58 percent said they would use this approach after the pandemic if this remained an option, while 35 percent reported they would not, and 7 percent did not know.

When asked about their experiences of using video witnessing, 59 percent of users reported positive experiences and 21 percent reported negative experiences. More than two-fifths of respondents to the survey said there had been an increase in the overall time taken to draft and complete wills (44 percent) and the same proportion said an increase of risk of abuse.

Thirty-nine percent of practitioners reported that transparency/certainty around the process of signing a will had decreased because of video witnessing and about three quarters (73 percent) said they would not use it after the pandemic.

Risk of undue influence

Of those surveyed, the challenges mentioned most often were:

  • The risk of undue influence
  • The risk of future claims
  • The additional time taken
  • The difficulties in assessing client capability remotely.

One respondent said: “Not being sure who else is in the room or within earshot. I have taken instructions by Zoom and been shown an empty room at the beginning but heard (and occasionally seen) people lurking in the background later. It is too easy for undue influence”.

Another added: “There is always a risk of undue influence, and you cannot have the same level of interaction with the Testator/Testatrix and be sure that they are alone. Many older folks are not good with technology and so relatives could be apparently on hand to deal with the videoing which could have the effect of pressurising the person making the will. Whilst this mainly affects the taking of instructions, there must be certainty as to the absence of pressure/undue influence.”

‘Too risky’

A third said their company took the decision not to witness wills by video as the firm say it as too risky because solicitors would be unable to satisfy themselves as to the client’s mental capacity.

In addition, The Law Society wanted to know about the impact on practitioners’ views on technology use:

  • 30 percent said they were more likely to support tech in the will-writing process
  • 24 percent reported being less likely to support tech
  • 44 percent said the pandemic did not impact their views.

The need to keep pace with wider technological progress was mentioned by respondents.

One said: “Technology is transforming all parts of society and will do so with wills, so if that isn’t embraced by particular law firms, those firms will simply fall behind. Ultimately the proper use of technology in the will writing process should enable us as lawyers to service our clients better.”

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