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Signing wills under lockdown – proposals for change

The Law Society of England and Wales has been in consultation with the Government about the introduction of temporary changes to the law which governs…

The Law Society of England and Wales has been in consultation with the Government about the introduction of temporary changes to the law which governs the signing of wills.

Current law

The current law on the valid execution of wills in England and Wales came into force in 1837. For a will to be valid, the person making the will (known as the “testator”) must sign the document in the presence of two independent witnesses. The witnesses must also sign the will. The testator and both witnesses must all be physically present in the same room when each of them sign.

Impact of social distancing

Current social distancing measures make these requirements difficult (and, in some cases, impossible) to comply with, particularly for those in hospital or in a care home. This has led to reports in the press about wills being witnessed through windows or on car bonnets. There are also concerns about the risks associated with handling the document itself, as scientific evidence suggests that the coronavirus can live on paper and surfaces for several hours.

Proposal

The Ministry of Justice is considering a temporary relaxation of the Wills Act 1837 requirements. Possible options include reducing the number of witnesses required, allowing beneficiaries under the will to act as witnesses, or permitting the use of video-conferencing technology such as Zoom, Skype or FaceTime instead of physical presence. The law could also grant wider powers to the courts to determine whether a document should be considered a valid will.

However, any relaxation in the legal requirements must be carefully balanced against the need to protect the elderly and vulnerable from fraud or abuse.

What are other countries doing?

A number of other countries have already introduced temporary measures to assist those making wills during the COVID-19 pandemic.

Jersey

The Jersey Government has passed temporary legislation allowing wills to be witnessed by audio-visual communication rather than physical presence. The legislation will automatically expire on 30 September 2020 unless it is extended.

Scotland

In Scotland, wills only require one witness and legislation passed in 1995 already permits Scottish wills to be witnessed by video-conferencing. However, guidance issued by the Scottish Law Society suggests that a solicitor acting as the witness should take practical steps to mitigate the risk of fraud or undue influence. Such steps include asking the testator to show the camera around the room to confirm that no one else is present.

New Zealand

New Zealand has temporarily changed the legal requirements for the valid execution of wills due to the COVID-19 pandemic. The changes allow wills to be signed and witnessed using audio-visual technology. The testator signs one copy of the will with the witnesses watching over a video call. The witnesses sign a separate copy of the will, again over a video call. Photographs or scanned copies of the will are then sent to a nominated individual to hold as a copy of the whole document.

The guidance issued in New Zealand makes it clear that the changes are intended only as a temporary measure and that the law will return to normal in due course.

Australia

Queensland, Australia has also introduced temporary changes to allow wills to be witnessed by video conference. The will must be prepared by a solicitor, and the solicitor must be one of the witnesses. The document must clearly state that it has been executed via video conferencing due to the circumstances with COVID-19.

Summary

The trend seems to indicate that other countries are favouring the use of video-conferencing technology to sign and witness wills. There is a danger, however, that relaxing the rules could lead to elderly and vulnerable testators being subject to undue influence, duress or fraud. Ultimately, this could result in more wills being challenged in the future. It also risks confusion as to what the legal requirements are and when they will expire.

Protection of the vulnerable remains at the heart of the law in England and Wales, which perhaps explains why the rules have not changed in nearly 200 years. Practitioner opinion is split as to whether temporary (or indeed permanent) changes in the legal requirements would be a good thing. Without a doubt, any changes in the law must ensure adequate safeguards are in place to protect the elderly and most vulnerable during this time.

If you have any questions or would like to know more please contact Lorraine Wilson, Solicitor on 0161 214 0532 or lorraine.wilson@weightmans.com.

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