We are coming across a growing number of clients who wish to make, or update, wills as a matter of urgency as the Covid-19 pandemic progresses.
Anecdotally our firm’s experience would not appear to be unique, and many of these clients are in the groups most vulnerable to the effects of the virus.
This makes their need to have up-to-date, valid wills that fully reflect their wishes more pressing.
"For a will to be validly created, the testator has to sign in the joint presence of two witnesses
It also poses legal and practical problems.
Electronic communications can be used to take instructions provided the solicitor is satisfied that the person making the will (the “testator”) has capacity and is not being influenced by another person but, for a will to be validly created, the testator has to sign in the joint presence of two witnesses, who must also sign the will in the presence of the testator.
This is inconsistent with rigorous self-isolation.
If the two witnesses and the testator are all in the same room together then it is presumed the will was signed by the testator in their presence.
If the witnesses are in a different room, even in the same house, then there must be evidence that the testator could see the witnesses when they signed and vice-versa.
The regime governing wills and probate in England and Wales dates back to the Wills Act 1837 (the year Queen Victoria ascended to the throne) and has not been significantly reformed since.
A legal precedent that predates even this, though, might provide a solution enabling the creation of valid wills by self-isolating individuals, at least in some circumstances.
In the case of Casson v Dade in 1781 it was decided that a will was valid because the testator, sitting in her carriage outside her solicitor’s office, could have seen the witnesses adding their signatures to her will.
In the current situation Casson v Dade would appear to permit valid wills to be created in circumstances where the witnesses can see the testator sign through a window and the testator, in turn, has a clear line of sight of the two witnesses as they sign on the other side of the glass.
The Ministry of Justice has classed solicitors acting in connection with the execution of wills as key workers during the current “lockdown” scenario.
This status could be subject to change but, as things stand, solicitors would be permitted to travel (subject to observing social distancing and taking all necessary hygiene precautions) to the home of a client and stand outside the premises for the purposes of signing a will that would be passed between parties through a letterbox .
This is not, unfortunately, watertight: relying on a precedent that pre-dates the French Revolution would potentially make wills signed and witnessed in this way open to challenge.
It would also only be a solution where the physical layout of the premises and the health of the testator allowed it.
A bed-restricted, or wheelchair-user, testator might not be able to come to a conveniently located window which, along with a letterbox, must exist in the first place. Clients who live in apartment blocks would, for example, mostly not be able to benefit.
To address this we understand that the Law Society and Ministry of Justice are in urgent talks to find a workable solution to enable testators to create valid wills without breaking quarantine.
Possible options on the table range from allowing handwritten, unwitnessed wills to developing a system that enables electronic witnessing.
Although reform is long overdue a quick fix could lead to negative outcomes.
There needs to be a balance between giving testators the opportunity to make a valid will and protecting people from force, fraud or undue influence.
Temporary legislation allowing unwitnessed self-written wills, or witnessing by video or other means, might provide a short-term solution but should only be for a time-limited period.
Any such measures would, in any case, carry significant potential for challenges to these wills in the future, particularly if there is any doubt about the testator’s capacity or the influence of the interests of other people.
Evidence of the way the will was signed could be required after death.
Video recording the process, or arranging for the solicitor to supervise the process if they cannot attend in person, might be a helpful precaution.
The coronavirus pandemic poses unprecedented challenges for the creation of documents that provide peace of mind to those individuals who are most at risk.
Solicitors, financial advisers and all those with testators’ best interests at heart must be vigilant to ensure that the solutions do not do more harm than the problem they are designed to solve.