The rules regarding the witnessing of wills were laid down in legislation dating back to the 19th century, set out in Section 9 of the Wills Act 1837. They prescribed that a will must be in writing and that there must be two witnesses physically present at the time the will is executed. The witnesses must be independent and must not be beneficiaries of the will or the spouse of a beneficiary, otherwise they would not benefit from the will.
Under the current social distancing rules, it can be very difficult on a practical basis to adhere to these stringent requirements. This is particularly the case for the elderly and disabled. The question, therefore, arises whether the rules in place should be modified or relaxed during this pandemic to make it easier for wills to be executed. The problem is that these rules were designed to give an element of protection to both the testator and the proposed beneficiaries of the will.
What are the options available for modifying the rules?
- One option would be to enact legislation which mirrors the provisions regarding privileged wills. These are wills which the law allows the armed forces to make. A member of the armed forces, under section 11 of the Wills Act, can make a will either in writing or orally. There are no witness requirements. However, for the ordinary citizen this could be going too far, offering little protection against abuse or fraud.
- Another alternative would be to relax the rules by just requiring one witness to be physically present at the time the will is executed. This would reduce the burden of having to find two witnesses.
- A third method would be with the assistance of modern technology. A client could sign a will in the presence of a solicitor, by video link, and subsequently, the original will could be sent to the solicitor who signs it as a witness. This would give significantly more protection to the person making the will. However, there may still be problems in arranging for the will to be sent by an elderly or disabled person to the solicitor, due to the fact that he or she may be confined to their home without any means of arranging post to be sent. This proposal also assumes that the elderly or disabled person is able to use such technology, which a large number of elderly and disabled people are not able to do.
- A suggestion which I would put forward is that a solicitor could take instructions from the client over the telephone. If the solicitor is confident that the person making the proposed will has the capacity to do so and is able to give clear instructions, then the solicitor could prepare the draft will and send it out to theclient for approval. If the client then, during a further telephone conversation, speaks to the solicitor and confirms that the will is in accordance with their instructions, the client could then sign the will whilst on the telephone to the solicitor. The will would besent as soon as possible to the solicitor, who would sign the will to certify that their client fully understood the will. If unfortunately the person making the will dies before the solicitor receives the will, then the rules should be altered to allow the Probate Registry to accept a statement from the solicitor, certifying that the will was in accordance with the instructions given by the client and that the client fully understood the terms of the will.
The importance of adapting rules to the pandemic
It is clear that many people during this pandemic are anxious to make a will, with a surge in demand for wills having been reported. In view of this, there is a strong argument, at least temporarily, to relax the rules to make is easier for people to sign wills in this very difficult time. This is because the rules regarding self-isolation impose real practical difficulties in ensuring that wills are properly executed in accordance with the current rules surrounding them. It should be noted that extreme measures are being taken by the government in other areas due to the pandemic. For instance, the BBC has reported that patients can now have home abortions during the pandemic.
Has the time come for the government to take drastic action and reform the rules regarding wills?
In the meantime, for guidance on how to make a properly executed will during the pandemic, please ensure that you get expert legal advice from a specialist solicitor. We at Winston Solicitors are able to offer such advice. Please contact our Wills & Probate team on 0113 320 5000 or email mkv@winstonsolicitors.co.uk
