COVID-19 EXPERT LEGAL INSIGHTS

Will COVID-19 prompt changes
to Will legislation?

23 April 2020

There has been an increase in the number of clients wanting to write new, or update existing, Wills or Lasting Powers of Attorney while either self-isolating or remaining within the government's social distancing guidelines. 
 

There have been many conversations surrounding possible changes to the Wills legislation, and some overseas governments have introduced emergency legislation and/or guidance.

Examples of overseas governments' emergency legislation 

  • The Jersey government has temporarily relaxed the formal requirement for two witnesses to be physically present when a Will is signed. Instead, the witnessing requirements that are necessary to execute a valid Will may now be completed by audio/video communication.
  • Ontario in Canada has temporarily permitted the virtual witnessing of Wills and powers of attorney as a result of the COVID-19 outbreak.
  • Wills in New Zealand can now be signed by audio-visual link.
  • Queensland, Australia has also introduced temporary relaxation of the rules in its legislation on witnessing Wills in the physical presence of the testator.
  • The Scottish Law Society has suggested that, in these unprecedented times, the solicitor or Will writer can act as the witness on a video call as long as they are not excluded by becoming executor directly or through a trust company.

However, to date the law has not changed in England and Wales.

 

In our previous blog we discussed the perils of signing your will and included some suggestions for how to do this whilst keeping safe and adhering to the government advice. This remains unchanged. Some additional suggestions include using a car bonnet or rear window (the wiper can be utilised in a clipboard type mechanism) or witnessing via a window which would allow your witnesses to stand outside whilst you sign and then post the Will through the letterbox for their signatures.

The legislation around Wills date back to 1837, so it is clear that there is a need for modernisation and reform, but the question is how and when.

The two options which seem to be suggested are (1) witnessing via videoconferencing or (2) extending the use of privileged Wills to everyone. Privileged Wills are a long established convention restricted to people making Wills when on active military service where the normal formalities of witnessing cannot be observed. Each comes with its own set of concerns.

A parliamentary question was answered on 24 April 2020 about the future of Wills. The response from the Government was that it is currently reviewing the case for reform of the law on making Wills given current circumstances.

Whilst it is clear that modernisation is needed, the difficulty is that any reform needs to be balanced against the important safeguards in the law to protect elderly and vulnerable people in particular against undue influence and fraud. Having two independent witnesses provides safeguards to those making Wills.

The danger is that quickly produced legislation intended to be introduced as temporary could slowly make its way to permanent law and therefore careful consideration needs to be given to what changes are implemented and how people are properly protected.

For the time being, you should ensure your Wills are signed in accordance with the law.

About the author

Diva Shah is an associate in our Private Client team. Diva acts for various clients including high net worth individuals, entrepreneurs, executors, trustees and individuals who lack mental capacity on a broad range of matters.

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