The advent of the coronavirus crisis has led lawyers to call for the Wills Act to be modernised.
The Coronavirus crisis has prompted a huge spike in the number of people seeking to write a will. However, during the pandemic, lawyers and would be will writers (especially those who are shielding, self-isolating or are being treated in intensive care) have struggled to comply with the need for witnesses to make a valid will
Lawyers have called for MPs to pass emergency legislation to amend the rules on witnesses but, more than two months into lockdown, there has been no change.
The Wills Act 1837 – a time when many people were illiterate and may not be aware of what they were putting their mark to – remains the source of the rules which state a Will must be signed by the testator in the physical presence of two witnesses who cannot be beneficiaries and must themselves sign the document in the presence of each other and the testator. During lockdown, this requirement proved problematic with people either completely self-isolating or isolating with would be beneficiaries there was great difficulty in finding two suitable witnesses to a will.
The Law Society of England and Wales is looking at alternatives to the 1837 Act. There are proposals to mirror moves in Australia where judges have the power to dispense entirely with the legal formalities if they have evidence – for example a statement recorded on a phone – of the deceased wishes. Other options include allowing a testator to draft a document in an emergency without witnesses and to allow video recorded or electronic signatures.
While the constraints of the COVID-19 situation have thrown the problem into sharp relief, lawyers must balance the inconvenience of witnessing wills through windows against the risk of fraud and of undue influence.
Until the government makes a decision on reform, lawyers will continue to find new and innovative ways of adhering the present law while keeping a two-metre distance from their clients.