The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
With news breaking that the use of video remote witnessing of Wills will become law – and backdated for Wills signed from 31 January 2020 – some people may be breathing a sigh of relief that emergency actions they had to take during the ongoing coronavirus pandemic, especially for those needing to shield, will be legally valid.
For others, the prospect of remote witnessing of their Wills going forward offers a new and potentially quicker and easier way for them to get their Will in place – especially for busy people, and with continued social distancing.
Whilst the news that the law is looking to modernise and move to recognise the opportunities of our increasingly tech-savvy world is to be welcomed, the risks also need to be considered.
The risks of remote witnessing
The main downside of a remote witnessing situation is that as an adviser or other observer, including a witness to the Will, you can only confirm what you can actually see, which will be limited to your screen and the camera angle and scope of the video feed. You cannot see the whole room and you cannot see what – or, more particularly, who – might be behind the screen.
For a Will to be valid, the person making the Will (the Testator) must be over 18, have the relevant mental capacity to make a Will (known as Testamentary Capacity) and the Will must be in writing and signed by the Testator in the presence of two independent witnesses who do not (and whose spouses do not) benefit from the contents of the Will. Whilst this process provides legal validity, Wills can be challenged on a number of grounds by disappointed beneficiaries who feel they should have been included or have received more than the Will provides.
Grounds for challenge include allegations that a Testator did not understand or approve the contents of a Will, or that they were subject to undue influence from a third party in the preparation of their Will. Whilst remote witnessing abilities will enable a Testator’s capacity and their understanding of the Will to be assessed, the limitations of video conferencing’s ability to confirm categorically that no one else was present – and that the testator was, therefore, making the Will in the absence of pressure or ‘support’ in setting out their understanding – is necessarily limited, and as a result, may be open to challenge.
The future for Will signing
The new rules are to be welcomed, but it appears sensible that, wherever possible, the current in-person signature rules continue to be followed and, if the remote witnessing rules are required for an emergency situation, it would be sensible for a Will to be re-signed in the physical presence of two witnesses as soon as the emergency situation to best protect the full implementation of a Testator’s wishes. This will enable witnesses to give a much fuller account of the circumstances of the signature of the Will – including whether anyone else was present or not – and may alleviate concerns or allegations. This will be particularly beneficial for Testators with more complex circumstances, where they may be looking to exclude a family member from benefiting or making substantial changes to previous Wills.
For more information
If you would like advice about the preparation of your Will or how the new rules might affect you, please contact Donna Holmes.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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