Coronavirus: be prepared for an increase in challenges to wills
News article published on: 29th April 2020
Challenging the validity of wills is already common, and with social distancing preventing solicitors carrying out the usual safeguards for clients making wills, it’s likely that this upward trend will continue. Challenges to wills are costly and time consuming to deal with, and can create irreparable damage to family relations.
Wills can be challenged on the following grounds: lack of testamentary capacity, want of knowledge and approval, lack of due execution, undue influence, and forgery/fraud.
When a will is professionally drafted by a qualified and knowledgeable solicitor, you can expect certain safeguards to be carried out to ensure the will is valid. These include capacity assessments, ensuring the testator gives instructions alone and without the interference or influence from others, arranging any necessary translations, and ensuring the will is properly executed. The evidence of a competent solicitor who has carried out such safeguards will be difficult to challenge later.
However, with self-isolation and social distancing in place, few people, if any, will be able to have a face-to-face meeting with a solicitor to prepare and sign their will. Even if steps such as video calls can be taken, the solicitor will be unable to confirm that a testator was alone when giving instructions, and in these unprecedented circumstances, it is not clear how much weight will be attached to a capacity assessment conducted during a telephone or video call.
Vulnerable people are most at risk, especially those who are dependent on care provided by a single family member or neighbour, who then coerces the vulnerable person into making a will in their favour and to the exclusion of others.
Execution of the will can pose a significant issue when a solicitor is not able to meet with the testator due to social distancing. Assuming two independent people are willing to act as witnesses, the testator and witnesses then need to physically see each add their respective signatures to the will, whilst following social distancing guidelines. If it transpires the will has not been properly executed, the will is not valid.
Where there is any uncertainty about whether a testator had testamentary capacity, was coerced, did not fully understand the content of their will, or that the will was not witnessed or that the signature was forged, you should not be surprised to see a later challenge. When we see a relaxation in the social distancing guidelines, arranging a meeting with your solicitor is recommended to review your will, and if necessary, re-sign it.
Blog post written by Elspeth Neilson