“This is a delicate area of law and we absolutely must continue protect the elderly and vulnerable against potential fraud. While there are no current plans to change the law, we will consider all options and keep this under review during the Covid-19 pandemic.”
(Ministry of Justice, United Kingdom, published in Guardian Newspaper, 31/03/2020, London, United Kingdom)
UK is passing a very tragic moment caused by Coronavirus pandemic as the total death toll passed 20,000. The government introduced several Lockdown measures and Emergency Rules to combat the spread of coronavirus. This virus has changed almost every aspect of society both here in the UK and around the world. The Law of Will in the UK should not be treated as an exception. Extraordinary situation created by this virus has also created extraordinary circumstances to introduce changes in the current requirements of will.
Unfortunately a good number of victims of coronavirus are dying without having any formal will behind. They are dying without having any opportunity to say goodbye to their family members. In one incident published on 24th April 2020 in several newspapers, that a wife was given just 15 minutes to say goodbye to her husband before he died from Covid-19 in hospital. Joanna Parker rushed to Queen’s Hospital, in Romford, in East London, to be with her spouse Keith father of four, after his condition deteriorated on April 11. But she didn’t get to hug him or kiss him when she saw him for the last time because of distancing rules. The hospital called Mrs Parker the next day to tell her he had died. This is one of the thousands of unpublished sad stories in which Britons are dying without leaving any formal will behind or even without having any opportunity to say goodbye to their family members.
Current restrictions & Wills
Traditionally, lawyers relied upon face-to-face meetings for the taking of initial instructions, right through to the physical presence of the Will-maker and two witnesses to put the document in place at the end of the process. However, with the current restrictions, people’s safety is paramount. To make a valid will in England & Wales, a testator must have their signature witnessed by two independent witnesses. But with the current social distancing measures and self-isolation to contend with, how can we ensure wills are valid? Under current social distancing measures, especially for those in isolation at home or in hospital, it is almost impossible to adhere to the rules.
Hence in this article an attempt would be made to establish how to introduce changes in the current Law of wills to make or amend a will during the Coronavirus lockdown.
Requirements of a valid will
The requirements of a valid will were introduced by Wills Act 1837. The Act stipulates that all wills must be executed in accordance with Section 9 of the Wills Act 1837. This act states that no will is valid unless for conditions are satisfied. They are firstly, it is in writing, and signed by the testator, or by some other person in his/her presence and by his/her direction. Secondly, it appears that the testator intended by his/her signature to give effect to the will. Thirdly, the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time.
And finally, each witness either (a) attests and signs the will or (b) acknowledges his/her signature in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary. I will address here two case laws, In the case of Brown v Skirrow (1902), the judge held the witnesses must have a clear line of sight and presence must mean ‘visual presence’. It did not matter that the testatrix had acknowledged her signature to second witness, since that acknowledgment needed to take place in the presence of both witnesses before they each attested it.
However, the case Casson v Dade (1781) is an example of where the circumstances were enough to meet the witnessing requirements. In this case, a maid was in a carriage and witnessed a will through a window when a horse pulling the carriage reared up, offering her a line of sight of the moment of signature. The principles established in this case was applied by Senior Judge Lush in Re Clarke in 2011 when a lasting power of attorney was held to have been validly executed where the donor was in one room and the witnesses in another, separated by a glass door.
Negative Impact of Coronavirus
Unfortunate the coronavirus has changed almost every aspect of wills in the UK. To combat coronavirus, the UK Government has introduced social distancing and social isolation which is threatening to fulfil the requirements of the meaning of the word ‘presence’ in the Wills Act 1837 to form a valid will.
Question arises whether an amendment should be introduced in the current Wills Act to confirm that wills can be signed and witnessed remotely, i.e. through Skype or video conferencing.
Amendment is required
I would suggest very respectfully to the Ministry of Justice for relaxing the formal requirements for incorporating provisions to confirm that wills can be signed and witnessed remotely, i.e. through Skype or video conferencing. Scotland has already taken this approach to deal with the wills of the testators died due to COVID 19. As the Ministry of Justice, did not take this approach into their consideration, currently it is impossible to create a valid will remotely via skype, telephone, video conference etc. due to the strict requirements in Section 9 of the Wills Act 1837.
Options available to Testators
In the absence of amendments in the current Wills Act 1837, in my opinion it is possible to make a valid will in England and Wales during the Coronavirus lockdown by applying the Case law Casson v Dade (1781) which established that witnessing through windows will be enough to meet the requirements of Section 9 of the Wills Act 1837. It could be also argued that while observing the recommended social distancing measures, all parties involved being in an open area were present to witness the will.
In circumstances where wills cannot be properly witnessed at all, for whatever reason, then there are three other options available for testators include to make a valid will. Firstly, making lifetime or donatio mortis causa (death bed) gifts. Secondly, preparing a letter of wishes which, whilst not legally binding, might be expected to be followed by the family after death and or thirdly, risking the remote witnessing of a will via technology.
Elderly and vulnerable testators should execute a will or amend a will in the best way possible without a risk to health. They should also prepare a short statement from the witness to accompany the signing so that the circumstances are outlined. This will then help to protect the validity in the event of a challenge after death.
It is to be noted that the Coronavirus pandemic is leading to a large rise in the number of people making or updating their wills. Recent research from the Law Society showed an increase of 70% in the number of people applying to make a Will. However, during the coronavirus pandemic, as mentioned earlier, the majority of the lawyers are working remotely from home due to social distancing and self-isolation. Therefore, to combat Coronavirus and help testators dying from Coronavirus, Rules should be introduced to reduce the number of witnesses required including accepting other solutions, such as video witnessing. In relaxing rules, measures should be introduced to prevent risk of fraud and protect vulnerable testators. In this extraordinary situation, the Ministry of Justice could also consider the 1837 act, which allows for “privileged wills” for members of the armed forces to make either a written or an oral will and, if written, there is no requirement for witnessess. It is also very important for people to be attentive when putting together or updating their will to ensure that it will be valid.
*By – Barrister M. A. Muid Khan
* (The writer is a Barrister of the Honourable Society of Lincoln’s Inn, Chartered Legal Executive Lawyer of CILEX. He was crowned with the CILEX PRESIDENT AWARD 2016. Bar Council, Law Society & CILEX jointly declared him as the Best Human Rights Lawyer of England & Wales. He can be contacted at firstname.lastname@example.org).