Covid-19 Means The Time Is Right To Overhaul Victorian Wills Legislation

The pioneer of an online “webcam wills” service says the Covid-19 pandemic should prompt an overhaul of the Victorian legislation which currently governs the making of a valid will in England and Wales.

Since the onset of the coronavirus crisis there has been a spike in people looking to put their affairs in order but the legal rules, which date back nearly 200 years, for making a valid will have been difficult to comply with during the pandemic.

This is especially true for vulnerable people who are shielding, people who are self-isolating and Covid-19 patients being treated in intensive care units.

The government has been urged to pass emergency legislation to relax the rules but there has been no change to date and lawyers report that some people who wished to make wills have died intestate.

Under the Wills Act of 1837 – the year Queen Victoria took the throne – wills must be signed by the testator in the physical presence of two witnesses, who cannot be beneficiaries and who must themselves sign the document in the presence of each other and the person who wrote the testator. The requirements were needed because of high levels of illiteracy in Victorian England.

The Law Society, which represents solicitors in England and Wales, has been discussing a relaxation of the current rules with the Ministry of Justice so that only one person needs to witness the signing of a will. There are also proposals to mirror moves in Australia to give judges the powers to dispense entirely with the legal formalities if they have evidence — for example, a statement recorded on a phone — showing that the will demonstrates the testator’s wishes.

Other options include extending provisions already in the act for “privileged wills”, which allow members of the Armed Forces to draft a document in an emergency without witnesses, and allowing video-recorded or electronic signatures.

Meanwhile businesswoman Gina Miller, who twice took the government to the Supreme Court over its Brexit plans, has backed calls for oral or bedside wills to be temporarily permitted. She has launched an online platform on which people can record private messages to their loved ones in a secure password-protected digital memory box, which can be opened in the event of their death by a designated nominee.

Jim Emsley, CEO of Bristol-based ELM Legal Services, believes the time is right for reform – and that it is “only a matter of time.”

He says ELM, which has launched an online will writing and estate planning service, allowing clients to hold face-to-face meetings with its legal professionals, including via webcam, has seen a surge in business since the onset of Covid-19.

“Procrastination is usually a problem with wills but the pandemic has brought people’s mortality to the fore, and we have seen a substantial increase in enquiries, mainly from people wanting to update their wills.

“The current crisis represents a unique opportunity to relax at least some aspects of the process of attestation, or signing, of wills, and to monitor the effects.

“Today’s technology alleviates the need for the physical presence of witnessing a will. The Wills Act of 1837 is steeped in tradition which has served and protected the public over the years but with a little thought, these protections could be relaxed and still provide the same, and in some cases better, protection in future.

“For example, if the witness is not physically present but has line of sight to the testator via a webcam actually putting his or her mark on the will, it could be stipulated that to have effect a digital recording of the attestation must be available or that a professional must be one of the witnesses. This provides another layer of protection for the testator and reinforces the signing rather than diluting it.”

Jim Emsley says ELM’s webcam wills service allows wills to be witnessed in the normal way, but that it has nonetheless “erred on the side of caution.”

“We have advised clients to follow the principles of the Wills Act alongside old case law dating from 1781, whereby it is sufficient to have two witnesses who are in line of sight though not in the same room. This enables the attestation to take place with individuals on the other side of a window.

“Nonetheless I believe change around the making and signing of wills will come. It has already happened in Scotland and the march of technology means it is inevitable at some point in England and Wales.”


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