The Law Society and the Ministry of Justice (MoJ) have been working hard in recent weeks to consider short and long term ways of amending the 1837 Wills Act to reflect the constraints we now face because of the coronavirus outbreak.
The outbreak of Covid-19 has not suddenly sparked the legal sector to consider the practicality of a Victorian law in a modern technological world. The Law Commission’s 2017 ‘Making a Will’ review looked at the flaws in the current system and potential improvements which could be made.
It is these recommendations that are being considered by the Law Society and the MoJ at present.
The ongoing discussions are considering the practical changes which could be made in the short term to provide assurances that the strained ways people are making wills, whilst complying with social distancing measures, are considered valid by the law, as well as the longer term changes which should be considered in order for Wills law to recognise the current ways people communicate and live their lives.
The Law Society is clear that discussions are ongoing and all realistic options are being considered.
What are the options they are debating and what is the likelihood of them being employed quickly to help ease the creation of valid Wills during the epidemic?
Short Term Measures
Reducing Witnesses
Complying with section 9 of the 1837 Wills Act has been a difficult task in recent months. Remaining a distance of two metres away from other people, staying indoors wherever possible and avoiding contact with other households makes the concept of two separate, independent witnesses a bit challenging to say the least.
Despite this, our inspirational profession has found a number of workarounds to facilitate a near impossible balance of complying with Wills law and governmental distancing measures.
The sector has utilised garden will signings, over the fence witnessing techniques, ‘drive thru’ style signings and even car park signings.
Whilst these are all excellent examples of practical workarounds, they could place testators, witnesses and legal professionals at increased risk of coming into contact with the virus.
Reducing the number of witnesses from two people to a single observer would unify English and Welsh attestation rules with Scotland’s and could improve the safety of all concerned at present.
The 2017 report suggested that a second witness significantly reduces the risk of fraud and successful undue influence for the testator. As the Law Society and MoJ are using the Law Commission’s 2017 consultation report as the basis of discussions, this option could face opposition.
However, it is a short term suggestion which offers a viable solution. Aligned with court dispensing powers, it could also provide a longer term gain for the sector.
Permitting beneficiaries to be witnesses
Given that many testators are probably living with their intended beneficiaries whether they be spouses or children, it seems as though allowing them to witness a Will could ease difficulties in safely witnessing and signing the document.
However, Section 15 of the Wills Act protects the testator from undue influence and potential fraud by restricting those benefiting from a Will to act as witness.
Given the inability for legal professionals to meet in person with the testator, relaxing this rule could cause more damage than good and is probably unlikely to change without considerable thought.
Dispensing Power
Whilst many of these safeguards, such as witnessing and attestation measures, were deemed essential to avoid fraud and undue influence, the consultation recommended the introduction of dispensing powers.
Given the difficulties social distancing is creating, following the formalities needed for a valid Will can be difficult.
In particular, witnessing procedures are often unworkable at present. Finding two independent witnesses to observe the testator signing the document in the same physical space violates Public Health England and Wales’ guidance and has forced testators and legal professionals to find appropriate, innovative workarounds.
Giving ‘dispensing powers’ to courts could be a short term and longer term solution. The courts could look at individual Wills locked out of probate and determine whether they qualify as valid.
For example, window witnessing and garden signings could be contested in the future. Witnessing watching a testator sign through a window, only for the document to be left on the witnesses doorstep to sign after it is safe to do so would mean that it was not signed by the witness in the presence of the testator and is therefore steering away from traditional formalities. Whilst this process has complied with social distancing guidelines, it fails to adhere to the laws set out in the 1837 Wills Act. A court could consider the circumstances, accept that the document validly represents the testator’s testamentary freedoms and agree that those involved worked hard to ensure all formal requirements were addressed and could declare the document as valid.
A court appointed dispensing power could also reduce the need to have two witnesses during the outbreak and could even permit the use of technology to help safely comply with this formality; witnesses could perform their duty using video conferencing technology.
Any risks or disputes arising from removing formalities on some Wills would be mitigated because the dispensing power is subject to judicial controls.
Long Term Improvements
Remote Witnessing using Video Conferencing
The world is using Zoom, House Party, Microsoft Teams, FaceTime and various other platforms to socialise, do business and remain in contact with each other. Why should Will creation differ?
The technology exists and can go some way to ensuring the testator is not being influenced to sign anything.
This has been a global solution for business continuity during the pandemic but cannot be quickly brought into law. Currently, a lack of judicial authority to sanction the use of this technology in conjunction with valid Wills will make it difficult to use in the short term.
The Law Society believe it may be worth obtaining primary legislation if appropriate safeguards are proposed.
Electronic Wills and e-signatures
In 2017, the Law Commission stated that electronic Wills could be a viable way of encouraging more people to make a Will whilst also creating and more efficient process and cutting costs.
However, at the time appropriate technological infrastructures were not available and this is still the case today. The UK is not geared up for mainstream use of biometric identification and simple printed signatures present safeguarding concerns and increased risks of fraud.
Additionally, e-signature are currently not considered legally binding in Wills according to Law Commission findings last year.
Undoubtedly, digital solutins for most things seems to be the consumer’s preferred future. However, until technology is able to catch up with this desire, it is unlikely to usurp current formalities involving witnessing and signing documents.
Valid Holographic and Privileged Wills
A lot of European jurisdictions allow the testator to personally write and sign their own Will and consider the document as validly demonstrating the testator’s wishes. Similarly, many members of the military are forced to make Wills at short notice in order for their wishes to be considered.
Much of the rhetoric in recent months has adopted a militaristic tone with the virus being donned an ‘invisible enemy’ by government. A lot of the declarative advice is also militaristic, so should we be allowing privileged Wills in times of such uncertainty?
Primary legislation is need and the obvious opportunities for fraud and undue influence will probably mean options omitting legal professionals and formal witnessing are avoided wherever possible.
