It is no surprise that the pandemic has brought to the attention of many that they need to make provisions should the worst happen. Firms have seen increases in the demand for will writing services but this has brought problems so that they may be compliant with section 9 of the Wills Act 1837.
Many areas in law are being brought into the 21st century, yet it is still a requirement that wills are signed in wet ink, in the physical presence of two witnesses. This practise seems archaic at a time where many are able to obtain important documents such as their driving license and passport through online applications.
There have been calls across the industry to change the way Wills are made. Gina Miller and Baroness Helena Kennedy QC called for the government to extend the provisions relating to wills during wartime, which would allow oral testamentary statements to be admitted to probate.
An Australian case in 2017 allowed an unsent text message to be admitted to probate. The Law Commission Consultation Paper on will reform had recommended the introduction of measures such as the introduction of documents, such as digital documents and recordings, as an alternative solution, under a statutory dispensing power. Yet, nothing as yet has been introduced.
The question was raised at parliament and answered by Alex Chalk, the Parliamentary Under-Secretary of State for Justice:
“The Government is currently reviewing the case for reform of the law on making wills given current circumstances.
The constraints of the Covid-19 situation must be balanced against the important safeguards in the law to protect elderly and vulnerable people in particular against undue influence and fraud. Having two independent witnesses provides safeguards to those making wills. Privileged wills are a long established convention restricted to people making wills when on active military service where the normal formalities cannot be observed, but which do not equate to the current civil circumstances. Other reform measures are being considered at present.
In the longer term, the Government will consider reforms to the law on wills arising from the forthcoming Law Commission report on wills, which will explore a range of issues reviewing the current law and the case for reform (including on the use of technology).
The Government is committed to considering further work on witnessing documents by video-conference generally, in the light of the recent Law Commission report on Electronic Execution of Documents, which will help to inform potential reforms to the law on wills in the future.”
In its consultation in 2017, the Law Commission looked at other jurisdictions that allowed ‘holograph wills’ where a will is written and signed in the testator’s hand and unwitnessed. Germany, Austria and Switzerland have holograph wills as the most popular type of will to be executed. Australia allows for holograph wills to be recognised under their dispensing powers. It was found however that the benefits of wills that did not require witnesses did not outweigh the concerns of fraud of undue influence.
Ian Bond, chair of the Law Society’s Wills and Equity Committee examined other reforms that may be discussed between the Law Commission and the Ministry of Justice in his blog post for LexisNexis::
- electronic Wills and e-signatures—the Law Commission set three pre-conditions before it felt that these should be permitted in terms of dangers of forgery, wider technology security and availability of suitable technical infrastructure. None of these are currently available and so will not be part of any immediate solution
- coronavirus pandemic – reducing two witness requirement to one witness—this would align with Scottish law but the Law Commission concluded two independent witnesses decreased risks of fraud and undue influence. However, as an immediate solution this is a possible interim solution
- remote/virtual witnessing through video conferencing technology–there is currently no judicial authority to sanction its use in executing a valid Will. This would therefore require primary legislation to widen scope of
- holograph Wills—based on the practice already in place in many European jurisdictions and would again require primary legislation to widen scope of
- privileged Wills—extending scope beyond current statutory limitation to active military personnel to the wider general public. However, this greatly increases the risks of undue influence and fraud
- dispensing powers—in a similar vein to electronic Wills, looking at Wills in alternative formats or that not do not comply with all the formal requirements of a Will but where the testator’s intentions are clear. A number of jurisdictions give ‘dispensing powers’ to courts, including Australia, New Zealand, South Africa and various states in the USA and Canada. The consultation looks favourably at this concept and quotes a commentator who observed that formality requirements should be ‘a means to an end and not an end in themselves’. Of course, there would need to be adequate safeguards in place. For example, the consultation is not in favour of accepting unrecorded oral statements
- is a key protection from the risks of undue influence and/or fraud allowing beneficiaries to be witnesses
There are options that the Commission and MoJ could consider, but it most certainly will not be an easy task, or one that could be done quickly. There must be precautions put in place to protect those who are vulnerable, either against fraud or undue influence. As Ian Bond stated:
“…this is a highly technical area of law and can have a massive impact for generations to come.Swift action in this area could end up doing more harm than good.”
We spoke to Lucinda Brown, Partner in Will & Trust Disputes at BDB Pitmans about her views:
“A Will is an important document and it has to be right that, despite the challenges the current pandemic presents, appropriate formalities continue to be observed in respect of the execution of Wills. Having these formalities in place protects the testator and the intended beneficiaries of their estate against claims that the signature is a forgery or that the testator was coerced into making the Will.
Whilst it is important that the will-making process is not so stringent as to deter people from making Wills, any relaxation of the current rules needs careful consideration. Making it easier for testators to put their affairs in order, for example by allowing the witnessing of Wills by video-conferencing, needs to be balanced against the risk that their Wills will potentially be more vulnerable to claims.”
What are your thoughts on any possible changes? Have you had any clients adversely affected by the need to meet the requirements of s.9 Wills Act? Or possibly have you come up with a novel way to help clients meet the requirements?
