Experts Discuss Possible Will Changes

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. These include reducing the number of witnesses, allowing beneficiaries to witness a Will being signed, court dispensing powers, remote witnessing using video conferencing and the use of electronic Wills and e-signatures.

As the current system comes under scrutiny, a number of experts have offered their insights into any potential changes and the impact they may have on the validity of a Will.

Ruth Heap (TEP), Partner and Head of Private Client Services at Hillyer McKeown LLP, commented:

“Recent events surrounding Covid-19 have highlighted the need for flexibility and the current system has been found wanting. The Wills Act 1837 governing making and executing Wills is out of line with modern life, the use of technology and peoples’ requirements.

“As making a valid Will is very important, as they often deal with large sums of money, the process is unfortunately open to fraud. Currently, the two witness requirement is a safeguard which protects the validity of the Will, ensures the testator’s capacity and guards against undue influence.

“Changing the requirements to one independent witness or permitting e signed/video link signing may simplify the process, but is more open to Wills being contested.”

Emily Deane, TEP Technical Councel at STEP, commented:

“STEP has suggested that the Ministry of Justice considers the temporary removal of s9 of the Wills Act, which will make a will comparable to a deed, so it would only need to be witnessed by one person. Whilst the government maintains the current law, it is effectively condoning gatherings of at least three people from two of more households and putting people at risk of catching or spreading the virus.

“STEP would also welcome the introduction of video conference witnessing of wills, which would remove the need for any physical witnesses at all. Of course, not everyone has access to laptops or mobile phones with video facilities, which would exclude a small demographic of the population, but it could work for the majority. Until the government makes a decision, we continue to advise people to adhere to the current law to ensure their will is valid. This means two independent witnesses maintaining a two-metre distance, with gloves and separate pens strongly advised. However, this is far from ideal and we hope the government will take considered action soon. It is particularly important that any reform considered should not expand the scope for fraud or undue influence, particularly on vulnerable people.”

Heledd Wyn, Associate Director of Private Client at Gregg Latchams, commented:

“Possible law changes include:

Dispensing powers

The courts could look at individual Wills locked out of probate and determine whether they qualify as valid. The Court always has jurisdiction to look at the circumstances surrounding the execution of a Will and I anticipate that a number of wills will need to be reviewed post lockdown in any event. For those wills where the testator cannot update it, there may be an increase in disputes because wills are not correctly executed or perhaps the opportunity for undue influence is higher? Emotions are running high and that is always a tricky balancing act when drawing up a new will.

Reducing witness numbers

This could be practical as it reduced contact – but the triangulation of two witnesses can be useful – again if there is a dispute.

Permitting beneficiaries to be witnesses

Beneficiaries should not be witnesses as again, we have concern about undue influence etc.

Remote Witnessing using Video Conferencing

Good attendance notes would be helpful and a recording of the execution might in fact be preferable to a simple note of the meeting in the event of a dispute? New technologies need to be tried and – more importantly tested – before they are proven. Like all crises, Covid-19 has made us all rethink and necessity is the mother of invention!

Electronic Wills and e-signatures

Other legal documents are moving this way – why not wills? There has long been resistance to this from the profession because of concerns about fraud, but given that the Wills Act 1837 was put in place when literacy etc was high, is it not time to review the ability to sign documents other than in pen & ink in person?”

 

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