In these times of Coronavirus many people are, sensibly, giving thought to making a will – or updating an old one.
It is surprising to observe that the legal formalities relating to wills derive from the Wills Act of 1837 – this is an Act of Parliament that is nearly 200 years old – at that time there were no computers. There were no video cameras. There were no mobile phones – there were not even typewriters. This means that, for example, a will made on a laptop or filmed on a mobile phone will not be valid.
Section 9 of the Wills Act requires a person making a will to sign it – and that signature must be made or acknowledged in the presence of two or more witnesses. In the days of Coronavirus when gatherings of two or more people are banned it can be difficult for anyone preparing a will to get it witnessed. Even without Coronavirus the Association of Contentious Trusts & Probate Specialists found that the inadvertent failure to observe the legal formalities required to make a will was one of the main reasons for probate and will disputes. The failure to comply with the strict requirements of the Wills Act can result in the wishes of the person making the will not being followed after their death.
So what can be done?
It is still possible to comply with the need to get a will witnessed by two witnesses – the BBC has recently reported an increase of wills being signed on the bonnet of a car. Equally there is nothing wrong with an individual signing a will with two neighbours watching over the garden wall – and the will being left on the wall for the neighbouring witnesses to sign after the person making the will has appropriately retreated. There is no legal need for the people witnessing the will be know the contents of the will.
At present a will is not valid if the person witnessing the will simply sees it over a video or mobile phone.
The Law Commission is an organisation set up by Government to improve the process of law. In 2017 the Law Commission prepared a report recommending that the court has a “dispensing power”. This means that if a will is not legally valid a court could still recognise it as valid if it was satisfied that this is what the person making the will wanted – even if, for example, it was not properly witnessed by two witnesses. I contributed to the Law Commission Consultation. Although the Law Commission reported in 2017 the Government at the time decided not to proceed with the recommendation from the Law Commission – a decision that, with hind-sight, is particularly regrettable. I hope that the Government will quickly accept the Law Commission recommendation to reform the law of wills – but in the meantime other steps are being taken. I currently sit ono the Law Society Wills & Equity Committee. Members of the Law Society have met with officials at the Ministry of Justice to try to persuade them to relax some of the current regulations relating to the making and witnessing of wills – one of the disadvantages would be, of course, that it may be more easy to subject an elderly or unwell person to undue influence – particularly if two witnesses did not need to be present.
In conclusion it is important to make a will and to keep it updated – otherwise the state will determine who will get your assets and your estate. It is also to be hoped that soon the Government will change the law to make the witnessing of wills easier and to bring the Act of Parliament from 1837 up to date. The message is to ensure that your will is properly prepared – but if it isn’t and there are problems consult a specialist solicitor.
What’s next?
Please do not hesitate to contact us on 01925 230000 or contact Stephen Lawson at stephen.lawson@fdrlaw.co.uk should you have any questions regarding the above or if you need any advice from our expert solicitors who will do their upmost to assist you during this difficult time.
Stephen Lawson is an Inheritance Dispute specialist at FDR Law.