Insight into Law Society’s discussions with the Ministry of Justice on urgently reforming witnessing requirements for Wills due to coronavirus (COVID-19)

How are practitioners complying with both Wills Act 1837, s 9 and social distancing?

Practitioners will of course be aware of the formal requirements for making a Will—a Will must comply with the requirements of the Wills Act 1837 (WA 1837), s 9 in order to be valid. I will not go through those here as there are many Practice Notes that can be found that discuss this in detail. What we all know is that it has been established over the last 180 years that a Will which fails to comply with these WA 1837, s 9 formalities is invalid and cannot be admitted to probate.

While the requirements of WA 1837, s 9 are simple to follow for a professional supervising a testator signing their Will, there is quite a lot that can go wrong when the signing is unsupervised. The requirements on social distancing and self-isolation means that for many professionals writing Wills they are moving from face-to-face to a faceless world of client interaction. This brings an increased risk of Wills being challenged after death, and the incidence of litigation. Such litigation being expensive, divides families, and causes distress for the bereaved.

The problems caused by social distancing and self-isolation in fulfilling WA 1837, s 9 formalities have been well covered in blog posts by Barbara Rich, barrister at 5 Stone Buildings, Charlotte John, barrister at Hardwicke and extensively by Brian Sloan, legal academic at The University of Cambridge. All three are worth following on Twitter for their insightful commentaries on this area of law.

How does the Law Commission’s consultation (Making a Will) provide assistance?

The coronavirus pandemic brings into sharp focus the fact that the law of Wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era. In 2017, the Law Commission launched a public consultation on reforming the law of Wills. They received 182 responses to the consultation, which was a high rate given the technical nature of the consultation. Sadly, this work was paused without the benefit of their final report and conclusions, post-consultation.

What is likely to be the focus of possible changes that the Law Society and Ministry of Justice are considering to the requirements for the execution of Wills?

The Law Society has been liaising regularly over the past weeks with the Ministry of Justice to discuss proposals (with other professional bodies) on how it might be possible to relax the strict formal WA 1837, s 9 requirements on executing and witnessing Wills. The Ministry of Justice’s public position is as follows: ‘This is a delicate area of law and we absolutely must continue protect the elderly and vulnerable against potential fraud. While there are no current plans to change the law, we will consider all options and keep this under review during the COVID-19 pandemic’.

This means that, at present, Private Client practitioners must work within the confines of the existing requirements. The Law Society and Solicitors Regulation Authority have released guidance on the practicalities of dealing with the execution of Wills in these extraordinary times. Q&As have also featured in the Law Society Gazette.

Although the emergency legislation in the Coronavirus Act 2020 did not include any changes to the execution of Wills the high-level engagement between the Ministry of Justice and the Law Society continues. The starting point of talks is the work of the Law Commission from 2017 and, as that report confirms measures to tackle the issues with execution of Wills would require a substantial piece of primary legislation, it is not something that could (or should) have been shoehorned into the emergency legislation.

The discussions have focused both on practical measures that can be taken in the short term and what effect these measures would have for the long term. A decision needs to be made on either making a change the existing law for a fixed period of time (the anticipated period of the pandemic) or to make clear whether the existing law can be clarified, for example, in relation to the use of video conferencing technology for the purposes of witnessing and attestation.

It is a shared concern of the Law Society, the Ministry of Justice and other professional bodies that any changes should not lead to an increase in incidents of undue influence and/or fraud, especially for older and vulnerable people.

A number of options being discussed as possibilities for reform between the Law Society and Ministry of Justice were analysed by the Law Commission in 2017. Some of these options include:

1. electronic Wills and e-signatures—the Law Commission set three pre-conditions before it felt that these should be permitted in terms of dangers of forgery, wider technology security and availability of suitable technical infrastructure. None of these are currently available and so will not be part of any immediate solution
2. coronavirus pandemicreducing two witness requirement to one witness—this would align with Scottish law but the Law Commission concluded two independent witnesses decreased risks of fraud and undue influence. However, as an immediate solution this is a possible interim solution to deal with the 
3.  but would require appropriate safeguards and guidance to be put into placeWA 1837remote/virtual witnessing through video conferencing technology–there is currently no judicial authority to sanction its use in executing a valid Will. This would therefore require primary legislation to widen scope of 
4. WA 1837holograph Wills—based on the practice already in place in many European jurisdictions and would again require primary legislation to widen scope of 
5. privileged Wills—extending scope beyond current statutory limitation to active military personnel to the wider general public. However, this greatly increases the risks of undue influence and fraud
6. dispensing powers—in a similar vein to electronic Wills, looking at Wills in alternative formats or that not do not comply with all the formal requirements of a Will but where the testator’s intentions are clear. A number of jurisdictions give ‘dispensing powers’ to courts, including Australia, New Zealand, South Africa and various states in the USA and Canada. The consultation looks favourably at this concept and quotes a commentator who observed that formality requirements should be 'a means to an end and not an end in themselves'. Of course, there would need to be adequate safeguards in place. For example, the consultation is not in favour of accepting unrecorded oral statements
7.  is a key protection from the risks of undue influence and/or fraudWA 1837, s 15allowing beneficiaries to be witnesses—

The task is of course huge and the timescale very short. Caution is essential in this area of reform as this is a highly technical area of law and can have massive impact for generations to come. Swift action in this area could end up doing more harm than good. The Ministry of Justice will take its time to formulate what action (if any) to take in the coming weeks and months. The Law Society is fully committed to working with the Ministry of Justice to have a workable solution and in the meantime will continue to offer solicitors practical guidance and support on implementing the current legislation is sometimes difficult circumstances.

Ian Bond can be found on Twitter at @ianbondtep