183 years later - is it time for change?

It is probably not an exaggeration to say that no-one likes change for change sake but in the case of the Wills Act 1837 (“the Act”) the Government is coming under considerable pressure to change what has been the recognised process of witnessing wills for the last 183 years! Many other legal documents have made their way into the modern world by being capable of being executed in a digital format but not so wills.

When the country first went into lockdown in late March as a result of COVID-19 the industry was therefore understandably concerned about how people were going to make valid wills, particularly elderly and other more vulnerable people who were more likely to be at risk of contracting COVID-19 and therefore sadly dying. Without the ability to make a valid will this meant anyone who died during this period (and this period is ongoing) would be classed as having died intestate with the very real possibility that they would be deprived of the ability to leave their estate to who they wanted.

The industry went into uproar and there were calls for the Government to act quickly and change the law. This did happen in Scotland and Jersey but in England and Wales the Government steadfastly refused to make any changes. Now it seems somewhat ironically given the relaxation of lockdown restrictions, that the Government is having a change of heart and the law which has stood the test of time may be about to be changed.

The current law

Section 9 of the Act, states that no will shall be valid unless

• It is in writing and signed by the testator or by some other person in his presence and by his direction;
• It appears that the testator intended by his signature to give effect to the will; and
• The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
• Each witness either: Attests and signs the will; or Acknowledges his signature, in the presence of the testator (but not necessary in the presence of any other witness)but no form of attestation shall be necessary.

During COVID it has been necessary for testators to find unusual and novel ways to execute their wills. Many a will has been executed over a table in garden, in some cases the testator and witnesses have been in the same house but not necessarily the same room but still in a manner where all have been able to see each other and there has even been some examples of execution by way of Zoom and other video conferencing facilities.

Doubt has remained throughout the industry, however, as to whether or not any of these alternative methods of execution would ultimately be valid, the industry hard and fast rule up until lockdown having been that the testator and witnesses should all be present in the same room at the same time and should each sign the will in the presence of everyone. Whilst in fact this may have been a step beyond that strictly speaking required under the law, it was how the industry operated in practice and had the advantage of meaning that there could be little scope for challenging the will, at least insofar as its validity under section 9 of the Act was concerned.

The proposed new law

Under the Government’s proposals announced shortly before Parliament went into recess, it is proposed that a temporary statutory instrument will be laid in September allowing wills in England and Wales to be witnessed remotely.

It is proposed that the new rules will be backdated to 31 January 2020 and will remain I place until 31 January 2022. The new rules will permit signatures to be witnessed using video conferencing software such as Zoom, Facetime or Skype.

Once signed by the testator, the will would then be posted to the witnesses for them to sign themselves during a web conference.

The proposed new rules do not go as far, however, as permitting electronic signatures.

Will it work?

Some solicitors in the industry have hailed the reforms as essential, common sense and long overdue whilst others have labelled them dangerous, time consuming and unnecessary.

One of the main criticisms with the new proposals is the question of delay. Given the need to post the will from the testator to each of the two witnesses, it could be several days before it is finally fully executed. Up to three video conferences will be necessary and documents will still have to be posted before a valid will can be created. That delay carries risk as during this period the testator could die or become incapacitated so that the will would not be valid.

There is also the question as to how the testator is to transmit the will to his or her witnesses. Many elderly and vulnerable people are still shielding and so posting the will could be difficult; either they would need to go outside their house to post it (which they may not want to do or may be unable to do depending on where their nearest post box/office is) or they would have to rely on someone else collecting it from them and doing it on their behalf.

Do the changes go far enough?

There is also the question as to whether or not the changes go far enough and are of any real benefit to the industry. Since the lockdown restrictions have eased many solicitors are now making home visits to testators in order to not only take instructions for the preparation of a will but also as regards execution, with social distancing and all other safety procedures fully adhered to.

In addition, the new rules could give rise to a spike in probate claims for any wills executed in this way upon the testator’s death. This has already been anticipated given the way in which some testators had to make wills “in a rush” immediately following the lockdown and whilst the strict restrictions were in place but some argue that the proposed changes are only likely to add to these potential claims. Possible challenges and complications could range from poor video quality to fraudulent alterations.

Whatever the position regarding subsequent probate claims, the changes will inevitably create a greater risk of uncertainty about whether a virtually witnessed will has in fact been executed properly.

Conclusion

It remains to be seen whether the changes will have the desired effect of making wills easier to witness during these difficult and challenging times and also, more importantly, whether the execution of wills in this manner will lead to an increased spike in probate claims but one cannot help wondering whether the Government’s proposed changes have all come a little too late in the day? Urgent reform was needed back in March when the country first went into lockdown. Indeed, there will be some people who have sadly since died and may well not have been able to execute a valid will as a result of COVID. It seems that the changes may well cause more additional problems and difficulties with the valid execution of wills than its intention of making the process easier and more straight forward. Only time will tell!