Writing a Will in this digital age
Many things about our lives have changed this year, but the importance of writing a Will is not one of them. For many people, in fact, living in the middle of a global pandemic has been a reminder that we never know when we might just need a Will.
At the same time, writing a Will is one of many areas where complications of the pandemic have been solved by digital solutions. This reminds us that changes to our lives did not start in 2020 and what we need to mention in a Will is very different today from twenty or thirty years ago.
Having your Will witnessed online
When lockdown began in March, one of the biggest problems for people wanting to make a Will was how to get it witnessed. There is no legal necessity for the testator and the solicitor to be in the same room at the same time – phone or video calls are possible and then sending the Will by post. Witnessing is a different matter, however.
The law has always been completely clear that a Will must be witnessed by two appropriate people who are with the testator and watch them sign the document. This is to verify that no fraud has taken place with the signature, and the witness is confirming that the testator was under no obvious duress to sign.
Since the witnesses cannot be a family member, including the testator’s spouse or civil partner, it became difficult to ensure that two appropriate people were present during the signing. This resulted in many people finding it near-impossible when writing a Will.
As the lockdown eased, the problem became more solvable. However, the logistics were still often difficult, and as we head into further restrictions, this could become difficult again.
Fortunately, the laws governing the signing of Wills have been temporarily altered to allow the witnesses to observe through a video call, via the likes of Zoom, Skype or Microsoft Teams. The witnesses can then arrange to sign later, and the wording “signed in the presence of” must be changed to “signed before witnesses remotely”.
The problems of having your Will witnessed remotely
The current arrangements, while an important emergency measure, are not an ideal situation. They create many grounds which might give rise to a challenge to the Will.
For one thing, it is absolutely vital to ensure that both witnesses have a completely clear view of the document and your hands as you are signing, and that they are able to verify that it is the Will that you have signed. This is not always easy, and you will need to consider the positioning of your webcam.
A successful signing must also depend on everyone’s connections remaining stable throughout the process. If your screen should freeze even for a moment while you are signing, or if one of the witnesses’ connection drops out, they will not be able to legitimately confirm they have seen you sign.
Alternatively, the witnesses may not be able to honestly state that there was no-one in the room putting undue pressure on you. In any of these cases, if someone were to challenge the Will, or if the Probate Registry decided to investigate, the Will could end up being declared invalid.
These arrangements are set to run until January 2022, and it remains to be seen whether they will be made permanent. The test of the success of online signing will be the number of disputes it generates. This may not become apparent for some time, since it could be decades before the Will goes to Probate.
In the meantime, it is best to regard it as a temporary measure, to be used as a last resort if you are unable to have witnesses present. However, it might be advisable to revisit your Will when live witnessing becomes feasible, just to ensure that your witnesses cannot be challenged.
Digital content in your Will
The method by which you sign your Will and have it witnessed, however, is not the only way the digital world has affected making a Will, and other changes are certainly not temporary.
For one thing, the internet has radically changed the way we manage our financial affairs. Many of these will involve apps, rather than physical records, which will make it harder for your Executors to find them all. They should not need your passwords to be granted access to your various accounts online, but they will obviously need a list of such apps.
In addition, most of us now have a variety of digital possessions, as well as physical and financial possessions. These may, for instance, include photos, eBooks, music and films. Just as we might want to ensure our books, CDs, DVDs and photo albums go to our heirs, we may also want to ensure they have access to our virtual possessions.
These could be held on a variety of devices, such as desktops, laptops, tablets and phones. The files may be more accessible to your heirs (as well as to you in your lifetime) if you store them in the cloud, rather than on a specific device. A password manager, such as LastPass, can make it easier for your family members to access the relevant accounts, and you may be able to nominate someone to have emergency access to your password manager after your death.
Just like your physical possessions, these virtual assets will need to be specified in your Will, either as possessions to be divided by your heirs or individually assigned to particular people.
Our Life Organiser provides the perfect solution when writing a Will. This free document provides an essential overview of all the information needed for your loved ones to correctly manage your affairs, including all your digital assets.
Being aware of the digital world when writing your Will
Whether it is a matter of how you make your Will or ensuring that your virtual possessions go to the correct beneficiaries, it is vital to keep up to date on both what is allowed and what you may need to specify in your Will. This is just one reason why it is vital to use a specialist Wills lawyer who keeps abreast of the latest developments, when writing a Will.
If you have any questions or would like to discuss your Will, please get in touch with us at Osborne Morris & Morgan today.