Emergency Wills And Probate Powers During Coronavirus

Naomi Neville, senior associate in the Tax, Trusts and Estates team at Irwin Mitchell

Around the world, lawmakers have reviewed and relaxed the laws around wills being drawn up, in order to prioritise safety concerns and allowing those making wills to do so while maintaining social distancing measures, recognising that during the Covid-19 pandemic making Wills is likely to become, increasingly, a wish of many individuals.

In England and Wales at the moment wills must be signed in the physical presence of two independent witnesses, who must themselves sign the document in the presence of each other and in the presence of the person who wrote the Will (the testator). Unless the testator is leaving their entire estate to a charity, it is unlikely that anyone living with them will be sufficiently independent to act as a witness. Face to face signing is arguably incompatible with the policy of social distancing currently in place to prevent the spread of the novel coronavirus, particularly among the vulnerable.

Many clients have taken to meeting neighbours outside of their houses, all standing more than two metres apart, and bringing their own pens to sign the document. Vulnerable people who are shielding and don’t wish to expose themselves to a meeting even outside have been able to execute a will while being watched by their witnesses through a window, they can then pass the will outside for signing by the witnesses as long as they can see the witnesses sign, limiting their exposure.

There are bigger problems for vulnerable people who are shielding who can’t easily or safely access a window and for those who are ill in hospital and cannot find even one, let alone two, witnesses to attend. Individuals who cannot make a valid will at this time may want to write down their wishes and hopes for their estate, even if they cannot get it witnessed at all. This will not produce a legal binding will, but may give some guidance to loved ones seeking to ‘do the right thing’ when sorting out the estate.

What are other countries doing?

Australian law already allows for courts to apply discretion in determining whether a document can be a validly executed Will or not, if it does not meet with all of the usually required formalities. UK courts do not have such a discretion, which arguably is of limited help as it does not give the testator the peace of mind of knowing with certainty that their Will will be held to be valid by a court.

Despite having this existing flexibility in Australia, Queensland legislators on the 22 April removed the need for the physical presence of witnesses to Wills, allowing for Wills to be executed with one or both witnesses being in the ‘presence’ of the testator by video conference, but only where the Will was drafted by a solicitor (or a solicitor is one of the witnesses or a solicitor is supervising the execution of the Will) and where “the reason why the testator was unable to execute the will in the physical presence of two witnesses was because of either government enforced or recommended, or self-imposed, isolation or quarantine arising from the COVID19 pandemic.”

Jersey is also introducing legislation to allow witnessing by one or both witnesses by video, with draft regulations that include similar safeguards to those required in Queensland, but additionally requires that within 14 days of witnessing a Will, the witnesses must provide a written attestation that the Will was witnessed in accordance with the regulations. It is also proposed that additional guidance will be given to legal professionals to help them assist their clients in complying with the regulations.

Testators in other countries whose legal systems are not based on English law common law already have the ability to make Wills without the presence of witnesses. For example in France and Germany it is possible to make a holographic Will. This is a Will which is handwritten by the testator (not typed) and then signed personally by the testator with the signature following the text. This process doesn’t require witnesses at all, nor the involvement of a legal professional (while this is of course still recommended).

Even in England and Wales, it is possible for ‘any soldier in actual military service, or any mariner or seaman being at sea’ to dispose of his estate without any formalities.

Are there reasons not to make Will execution easier at the moment?

In normal circumstances there are good reasons to support the longstanding principles and the requirements that witnesses must be physically present. This is a key safeguard in respect of Will creation, to ensure that:

• The person who wrote the Will is the one signing it;
• Their signature is not forged;
• The testator has not been coerced into signing the Will; and
• They have the mental capacity to understand what they are signing.

In normal times the benefits obtained by requiring these formalities far outweigh the potential detrimental effects of any practical difficulties. So the key question is whether the Covid19 pandemic has shifted the balance such that the practical difficulties now arising (particularly for those gravely ill in hospital) and the potential health risks involved in the witnessing process now outweigh the need for safeguards to protect against potential fraud.

We understand that our government ministers are considering several options, including allowing the court to have more flexibility to decide what constitutes a valid Will; a European style holographic Will; and also looking at whether Wills can be signed electronically rather than by hand. No decisions have been made yet.

While many legal professionals are keen to see a relaxing of the formal rules for executing Wills, we do have considerable concerns about what could happen if the rules are relaxed, particularly in relation to the elderly and vulnerable. Wills ‘without any formalities’ at all seem to me to push the balance too far, and provide no safeguards at all. A holographic Will could be thought to be useful for those in hospital who have no access to potential witnesses. However, those who are in hospital are likely to be the most ill and may not have the physical strength to handwrite a whole Will.

In conclusion, if any temporary relaxation is brought in, it seems that a mix of allowing the court additional flexibility to apply their discretion together with a system of allowing witnessing by video conferencing with extra safeguards such as in Queensland and Jersey may be the safest way to balance the needs of those wanting to write Wills against the need to protect against fraud and protection of the vulnerable in society.

Until any change is introduced, we will continue to advise clients to do all they can to stick to the required formalities, while not taking unnecessary risks with their health.

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