A Brave New World: Changes to Making a Will during COVID

Insight below, from our Dominic Davidson, takes a look at the temporary amendment to the law on executing wills during the COVID pandemic. The UK’s common law system is a dynamic one and it is vital for Parliament, and in turn Judges, to be able to apply and interpret the law as originally intended in circumstances that could not have been foreseeable by legislators at the time. In response to the Covid-19 pandemic, Parliament has sanctioned a temporary amendment to the longstanding Wills Act 1837.

Amendment to the Wills Act 1837

In response to the Covid-19 pandemic, Parliament has sanctioned a temporary amendment to the longstanding Wills Act 1837. Given the current rules on social distancing, coupled with a surge of individuals instructing solicitors for wills, the amendment is a “business as usual” approach that accommodates social distancing, without adding impractical restraints on will-makers. In short, the amendment allows both testator and witness to execute a will virtually without being present together. It goes without saying, that the original drafters of the 1837 Act could not have envisioned modern forms of communication nor social distancing rules. However, in a year were Zoom and Microsoft Teams are commonplace, Parliament has had to rethink its approach.

The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020

Under normal circumstances, a will can only be deemed valid whereby it is in writing, signed by the testator and in the presence of at least two witnesses.[i] The Act itself stipulates that “presence” is key in making a will legally valid. Interpretation of presence has always been taken literally; in the same room at the same time signing the same document. Unless the government stipulates otherwise, the new amendment applies to wills made on or after 31 January 2020 up until 31 January 2022. Section 9(2) of the Wills Act reads as follows:

“presence” [now] includes presence by means of videoconference or other visual transmission”[ii]

The only intended change made by this amendment is to allow witnesses to sign as virtual witnesses. It does not permit electronic signatures and all other rules and practices still stand. It is important to note that the amendment refers to “visual” transmission, it is a requirement that the witnesses must see the testator sign and thereafter supply their own signature. Therefore, a telephone call cannot be used for executing wills.

The Amendment in Practice: the do’s and don’ts

The Ministry of Justice has given a comprehensive guide on how to execute wills in light of the new law. The most important directions by the MoJ can be summarised as follows:

• That the two witnesses must see the testator and their actions
• At the beginning of the video transmission, the front page of the document should be shown to all parties
• Where possible, record the making of the will.
• After the video transmission has ended, the testator should send their signed will to the witnesses to sign and create one single document. The MoJ has advised that it is ideal to do so within 24 hours.

It is advised further that executing wills in this manner should only be considered as a last resort.[iii] Socially distanced executions are to be favoured where possible. Examples of socially distanced executions may include, witnessing through a window, corridor or adjacent room, or making use of the outdoors.[iv] As this is a hasty change to legislation and law, there are notes of caution. The government does not allow electronic signatures due to the inherent risk of fraud and undue influence. Furthermore, as the MoJ advice alludes to, there cannot be counterpart documents of a will. One single document creates a will and it is important to remember that although video witnessing is, for now, permitted, it is crucial to ensure that witnesses sign the document made by the testator.

The Future of Wills

As it stands, wills made after 31 January 2022 must follow normal practice. Nevertheless, a change in practice should be anticipated and for some, long overdue. In 2017, the Law Commission embarked on its review on the current law for making wills. Their impending report is expected to propose reform on key issues that concern, the ageing population dementia and mental capacity, whether those aged 16 can make a will, and more crucially, the role of technology.[v] The timing of the amendment to the Wills Act and the looming report from the Law Commission does suggest that changes to the Wills Act are here to stay. It will be interesting to see in the coming years whether Parliament’s new rule will remain or provide a gentle push into replacing the Wills Act 1837 altogether.

Sources:

[i] Wills Act 1837, Section 9(1)(a)-(c)

[ii] Wills Act 1837, Section 9(2)

[iii] Guidance on making wills using video-conferencing, https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing

[iv] https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing

[v] Law Commission, https://www.lawcom.gov.uk/project/wills/