There has been a rise in the number of people wanting to write or update wills during the pandemic as circumstances change. Legal rules make it tough to get everything done correctly when working from home and lockdowns are in force. This article examines the terrain.
The virus pandemic has focused minds on mortality and has also made it harder to deal with the chore of writing and enforcing wills. Wills are a bedrock of estate planning. (It is often startling to find how many high net worth individuals of middle age and above don’t even have one.) COVID-19 raises questions also about the due diligence that can be undertaken, as well as the pressures and emotions in play at writing and executing wills at such a time.
To consider these points, Sinead O’Callaghan, partner at Cooke, Young and Keidan, examines the subject. The editors here are pleased to share these insights and invite readers to enter the conversation. The usual editorial disclaimers apply. Email firstname.lastname@example.org and email@example.com
Perhaps one of the more predictable outcomes of the coronavirus pandemic has been a significant increase in testators seeking to put wills in place for the first time or revisiting existing wills to reflect changed circumstances. However, the pandemic has similarly caused significant challenges when it comes to the execution of wills given the stringent (and archaic) legal rules in place, which are difficult to reconcile with the current social distancing rules. This is especially true for those self-isolating or shielding with underlying health conditions, or those in hospital, care homes or in intensive care.
For a will to be valid, it must be signed by two witnesses who are present at the same time as the testator executes their will (1); the witnesses must be independent and not related to the testator (and indeed witnesses should not stand to benefit under the will as their gifts will be lost (2). The will must be signed by the testator in the presence of both witnesses at the same time before either of them attest the signature. A will cannot currently be signed electronically or virtually witnessed given that the physical presence of the testator and witnesses is necessary for validity. Whilst this may seem ridiculous at a time when technological advances mean that we are more closely connected in a virtual sense than ever, it is worth remembering that the rules were put in place at a time when the facilities now available to testators were non-existent.
Whilst the Law Society has been discussing a relaxation of the rules with the Ministry of Justice, nothing has been changed as yet. The reluctance to update the rules is said to be due to concerns in relation to fraud (the rationale for having two independent witnesses is to protect the vulnerable and to ensure the veracity of a document). It is fair to say that England has been much slower to react to this issue than other jurisdictions. (3)
The ways in which the rules may be relaxed could involve reducing the number of witnesses required, allowing remote/virtual witnessing and potentially the endorsement of holograph wills (where a will is written and signed in the testator’s hand and unwitnessed) or privileged wills (which have been available for members of the military for some time). There have also been discussions regarding adopting measures to give judges the right to dispense entirely with legal formalities if they have solid evidence that the will represents the testator’s wishes.
For now, and until any reforms come into effect, testators will have to persevere with seeking to execute their wills in compliance with the applicable rules. The options available given the necessary reconciliation with social distancing measures could include having the testator and witnesses undertaking the exercise in an open area, on opposite sides of a window or over a neighbour’s fence, or in adjoining rooms (whilst ensuring in all cases that the witnesses and the testator have a line of sight when it comes to actual signature).
Whilst it may be surprising, there is presently no authority at all on the question of whether or not a document can be executed and witnessed remotely using technology such as Skype or Zoom. There has been some discussion in relation to whether it is arguable that the Wills Act should be interpreted to take account of the technological advances that could allow virtual execution to take place. Whilst at first glance, it may seem logical that the courts should adopt this approach in the absence of legislative change, it is of course inherently risky to assume that this will be the case, particularly given that if a dispute does arise over the will, it is likely to be after the testator’s death, and therefore the testator will be unable to give evidence as to their intentions.
Of course, for some, these options will simply not be achievable. If this is the case, and testators have no alternative other than using remote technology, then additional precautions should be taken to ensure that all of the parties are satisfied that the will which is executed and witnessed is the same document. This could include holding up the document so that it can be viewed and compared or having the parties read out the document whilst being recorded. A belt and braces approach would also require taking statements from the witnesses detailing the process adopted by the parties.
One last possibility is that it has always been possible for a testator to appoint someone to sign the will on their behalf. If that appointment is made, the person appointed could then go on to sign the will in the physical presence of witnesses, who then sign themselves with the testator viewing the process remotely. As is the case above, it would be sensible if this approach is adopted, to obtain statements from the witnesses confirming the circumstances of the execution or to record the process, ideally by video, in an attempt to avoid disputes in connection with the testator’s wishes or in relation to questions of coercion, undue influence or incapacity further down the line.
1, It is worth mentioning that presence of witnesses includes both physical and mental presence;
2, s.15 of the Wills Act 1837 provides that, whilst their signature will be valid, they will lose their gift under the Will. This presents a particular problem in the current crisis given the restriction on socialising outside of one’s household; and
3, A number of jurisdictions give ‘dispensing powers’ to courts, including Australia, New Zealand, South Africa and various states in the USA and Canada. Germany, Austria and Switzerland have holograph wills as the most popular type of will to be executed.