Should the impact of the coronavirus in the UK change the law relating to Wills in the UK? A recent article in Barrister magazine by barrister M. A. Muid Khan tackled this very issue.
Ministry of Justice guidance published in the Guardian at the end of March said that Wills were “a delicate area of law” and that there were no plans at this point to change the law. However, all options would be considered, and this area would be reviewed.
As of 28 April, the UK’s number of deaths stands at 21,678 though this does not include care home deaths, which are thought to number in their thousands. Those figures will be included from 29 April onwards.
People dying without leaving a will
The Barrister notes that many victims are dying without leaving a Will (as well as being unable to say goodbye to their families). Traditionally, lawyers relied upon face-to-face instructions and a Will needed two witnesses to sign it off. But with the restrictions on people’s movements, Will requirements are almost impossible to carry out.
The requirements of a valid Will were introduced by the Wills Act in 1837, making Wills invalid if conditions are not satisfied. Case laws established that witnesses must have a clear line of sight and presence to the Will, and this must mean visual presence. In 1781 (Casson vs Dade), a maid witnesses a Will through a glass window in a carriage when a horse pulling the carriage stopped and offered her a line of sight to the signing.
The principles of this case were later applied to another in 2011 when lasting power of attorney was granted when the donor was in one room and the witnesses in another, separated by a glass door.
Amendment to the Wills Act
The Barrister article asked if an amendment to the current Wills Act could be introduced confirming that Wills can be signed and witnessed remotely through video conferencing—the main form the world is taking to communicate in these pandemic times.
The change has already taken part in Scotland for those dealing with the Wills of testators who have died due to the virus.
In the writer’s opinion, the absence of amendments does not mean there are not options. Taking the principles of the case law, Casson v Dade that established witnessing through windows was enough to meet Section 9 of the Wills Act 1837, all parties could meet in an open area to witness the Will.
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He also suggests making lifetime or donation mortis causa (death bed) gifts, preparing a letter of wishes (this is not legally binding) or risking the remote witnessing of a Will through technology.
The Barrister suggests elderly or vulnerable testators should execute or amend a Will without risking their health. They could also prepare a short statement from the witness that accompanies the signing, explain the circumstances in which it was carried out.
This article is not a substitute for legal advice. If you want to make or amend a Will, please contact a qualified legal professional to find out how you can do this safely and properly at this time.
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