With very limited exceptions, for a will to be valid, the person making the will must sign it in the physical presence of two witnesses who must then also sign the will. However, with the UK on ‘lockdown’ during the COVID-19 pandemic, this is becoming increasingly difficult.
Many are using inventive ways to get their wills witnessed; including signing documents on a car bonnet and witnessing signatures through windows and patio doors. However, these are not options that are available to everyone and there are fears that many people will die without a valid will in place due to the strict rules regarding witnesses.
Against this backdrop, there have been calls from many solicitors, The Law Society and the global body STEP, asking for emergency legislation to relax the rules during this unique crisis. The Ministry of Justice had been “looking at a temporary relaxation in the rules, which could involve reducing the number of witnesses required, or possibly accepting other solutions”. However, there appears to have been a U-turn on this and it has been announced that no temporary measures will be put in place. The industry will continue to campaign for temporary changes. This article explores what such changes might look like.
If any changes to the rules are allowed, they could include a number of measures:
1. Disponing powers
Disponing powers, used in many jurisdictions around the world such as Australia, could be introduced, and would mean that the court could exercise its judgement as to whether or not a will is valid where the one or more of the formal requirements, such as correct witnessing, has not been fulfilled.
However, such a power will not immediately resolve the issue so it would not be sensible for solicitors to advise their clients to dispense with the need for witnesses and rely on such powers.
2. Electronic witnessing
Getting a signature witnessed via a video call or other electronic means would also seem an obvious way to get a will signed without any risk to the health of the testator and their witnesses.
While not currently permitted in England or Wales, the Scottish Law Society has issued guidance to its members stating that a will witnessed via video link will be accepted as a valid will in Scotland.
This is not without draw backs though, especially in terms of a vulnerable person being coerced off camera.
3. Extending privileged wills
A very narrow exception to the witnessing rules is already permitted for soldiers, airmen and seaman who are domiciled in England or Wales on ‘actual military service’ or ‘at sea’. Known as ‘privileged wills’, those on active service can make a handwritten will that is not witnessed or a nuncupative (orally declared) will. This could be temporarily extended to the public at large.
Allowing a written but unwitnessed will to be admitted to probate may assist if absolutely no alternatives are available. However, this offers little protection for vulnerable testators who may be subject to undue influence.
As to whether an oral will should be permitted, the question arises as to how the witnesses will hear the declaration in a time of self-isolation and social distancing.
All potential solutions come with a number of limitations. If the Ministry of Justice does decide to introduce temporary measures it will need to balance the need to relax the rules in this unprecedented situation, with the need to protect the vulnerable.
