Should formalities for wills be relaxed amid COVID-19?

With news that Jersey has temporarily relaxed its requirements for witnessing the signing of a will, so that witnesses via video or audio communication are permitted, pressure has increased on our government to follow suit for England and Wales. Existing formalities in England and Wales are enshrined in the Wills Act 1837 and hold that a will must be signed by the testator in the physical presence of two independent witnesses. The witnesses then sign in the testator’s physical presence.

The key words preventing witnessing by video or audio communication are ‘physical presence’. However, signing in someone’s physical presence is clearly problematic under current social distancing rules.

Furthermore, the witnesses must be ‘independent’, and in particular they cannot be beneficiaries of the will. This generally rules out asking family members in the same household to act as witnesses.

In relaxing its rules, Jersey may have followed the example of Scotland, where legislation permits will signing to be witnessed by video-conferencing, yet in England and Wales, this is simply not valid.

It is understandable that the COVID-19 pandemic is making many people want to put a will in place, or finally to get round to signing a will that had been long planned. Lacking alternatives, some testators are resorting to asking neighbours to act as witnesses through a window, or placing their will under car windscreen wipers for signing in turn while remaining far enough apart. However, there are concerns that the virus may remain on the document surface, and these methods potentially contravene the rules against meeting people.

The Ministry of Justice has received many suggestions that formalities should be relaxed amid current circumstances. Parliamentary under secretary Alex Chalk responded to the House of Commons on 21 April 2020 that:

‘the constraints of the COVID-19 situation must be balanced against the important safeguards in the law to protect elderly and vulnerable people in particular against undue influence and fraud’.

This is the crux of the matter. Will formalities may seem archaic and overly prescriptive, but they exist and have done so for almost two centuries, for an important reason; protection of the vulnerable. The requirement for two independent witnesses is to ensure that the testator is not being forced or pressurised, whether by a family member, friend or carer, into signing a will they do not really want. A witness over video-conferencing could easily be unaware that someone is in the same room as a signing testator, exerting pressure by their very presence. The dilemma is to be confident that a relaxation of the rules, eminently sensible for many cases, does not open a door to pressure, duress or fraud.

The government have confirmed that they are still reviewing the case for reform, given the current circumstances, alongside longer term changes proposed by the Law Commission. At least for now, the process of will making needs to be planned on the basis that the law will remain unaltered.

For more thoughts on will making in the current crisis, see this article from the last issue of individual matters.

If you would like our help in updating your will, making a first will, or making an LPA, please get in touch with your usual BDB Pitmans contact, or one of the following:

Cambridge office: Owen Byrne
London office: Alastair Collett or Sabrina Underwood 
Reading office: Sheilagh Magee
Southampton office: Emily Taylor