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Will the pandemic lead to an increase in the number of contested Wills?
Among the many and varied detrimental consequences of the COVID-19 pandemic is the impact on the savings and investments of individuals, particularly in relation to estate planning. Financial markets have experienced turmoil and a period of recession, potentially severe, is widely expected in the coming months. New measures have been introduced during lockdown affecting the signing and execution of Wills, and fluctuations in the value of estates and investments have followed in the wake of the pandemic.
Against this backdrop, strategies employed for effective wealth management could be subject to change and individuals may seek to draft or amend their Will accordingly. However, in some cases, change inevitably leads to disputes.
Sign of the times
The lockdown caused a great deal of concern as to how Wills could be legally signed with social distancing restrictions in place. Usually, a Will must be signed by the testator and two witnesses who are in sight of each other and the document being signed in order to be properly executed. Despite the fact that, in July, the Ministry of Justice gave the green light for the temporary use of video technology for this purpose to become acceptable, this practice became legal on 28 September but will be backdated to 31 January 2020 and will remain in place for a year.
As a result, a lack of clarity as regards what is permitted is expected to lead to disputes over the validity of some Wills made during the lockdown period. Was the document clearly visible? Was undue influence exerted on the person signing the document by someone present but off camera? Was the video signing conducted prior to the July decision to permit them?
There are concerns that, in the present situation, the degree of scrutiny that could previously be applied to the signing of Wills has been reduced. Meanwhile, the opportunity for undue influence to be exerted during the process or for other issues to be overlooked could be greater. The emergence of recent cases involving the issue of the Will signing process appears to suggest that these concerns might be justified.
If, as is anticipated, the pandemic results in an economic slump, recent history suggests that an increase in Will disputes and probate claims may follow. This trend occurred after the 2008 ‘credit crunch’ with a sharp rise in claims made under the Inheritance (Provision of Family and Dependants) Act 1975.
The 2008 crisis placed the investment management of trusts and trustees under the spotlight and resulted in claims, albeit largely unsuccessful, brought against trustees by beneficiaries attempting to recover losses.
On the record
So, what can you do to minimise the threat of disputes arising of the nature outlined above? Clearly communicating your intentions to loved ones in relation to how you intend distribute your estate may help so that the content of your Will does not come as an unexpected surprise.
When it comes to the execution of the Will, ensuring that detailed records of actions completed will be extremely useful in preventing claims being made. This will include information (written notes, photographs of documents, etc.) about the preparation and execution of the Will and who was involved in the process. By doing so, answers to any potential queries about the validity of the document will be readily available.