This month we are focusing on Wills, as sadly, this is an area where lawyers are finding their services very much in demand. There are challenges at the moment for Wills specialists as they struggle to ensure that the requirements of the Wills Act 1837 are properly met. It is not the first time there have been calls to reform the Wills Act, but it is unlikely that a quick solution will be found. We will focus on the most pressing current issue (witness requirements), consider possible changes to the law and offer some practical solutions.
To put the potential scale of the problem into perspective, there are two things to consider. First, the surge in demand for Wills is significant and likely to increase. The Law Society reported at the end of March 2020 that there had been a 76% jump in demand for Wills over a two-week period. This is not at all surprising given the daily reports on the rising number of coronavirus-related deaths. With several more months ahead where people will be confronted with issues of their own and loved ones’ mortality, many will try to put their affairs in order. Second, if there is no change to the current rule, urgent new Will instructions may go unanswered or be dealt with inappropriately.
Unanswered new instructions may leave people without a Will in place when they need it most. Worse, instructions that are taken and dealt with incorrectly may result in an even greater increase in the number of disputed estate cases in years to come. The number of disputed estate claims issued in the High Court jumped last year to 368 from 227 in 2018. Many of these cases related to DIY Wills, but it would be a poor reflection on the profession if even more cases arose in years to come because of Wills created by experienced lawyers.
The Wills Act 1837 set out that a Will must be in writing, signed by the testator (the person making the Will) in the presence of two witnesses and signed by those witnesses. Under the current law, these formality rules are strict. If they are not complied with, then a Will becomes void, regardless of how small the error is. Under the Act it is not permitted to witness a Will via video-conferencing facilities, as both witnesses must be physically present. However, it may be possible to comply with the current social distancing rules during the process by, say, having the testator present with the witnesses and making sure that everyone has a clear line of sight of the process.
A further practical suggestion could be to video the process. While it is normally good practice to ask a client to attend the office to sign the Will, this may not be possible for several months. When a client attends the office, a detailed file note about how a Will was signed can be made. If a Will is sent out to a client’s home, then a video recording and later check of the process followed when the Will is executed may help to identify any issues.
These suggestions of course are of little help to a client who might already be severely ill in hospital and on an isolation ward. Unfortunately, it might be too late to help a client in this situation, and this is where a change in the law by the government is much needed.
The Law Commission has made several recommendations about reforms to the law on Wills in the past. Two of the most relevant to our current situation are:
1. Giving the courts the power to be more flexible or even dispense with some Wills Act formalities. This is not so much a solution but a way to fix problems which have occurred. This might be a costly exercise, and it also relies on being able to satisfy a court about what a testator’s wishes were.
2. Allowing people to make electronic wills. The Law Commission has made several recommendations about law reforms which would allow people to execute their Wills electronically. Creating a system quickly would be quite a challenge, particularly as it would have to be secure. Simply allowing a typed signature on an electronic document would not be secure enough, but biometric recognition or complex cryptographic systems are not something that can be created overnight.
There are other systems that could be adopted, including a European-style approach where a testator can write a Will by hand without witnesses. This is something that already exists to a degree within section 11 of the Wills Act, which allows privileged Wills for members of the armed forces. Privileged Wills can be made in writing or orally, and there are no witness requirements for execution. The Law Society is in talks with the Ministry of Justice about the need for changes to the law, but in the meantime, anyone making a Will should be careful to ensure they fully comply with the current legal requirements.
If you would like to learn more about Wills, the Institute of Legal Secretaries and PAs provides foundation and advanced level courses in Wills, Probate and Administration. Take a look at our website for further information.