The Law Commission has announced a public consultation on its 14th Programme of law reform, calling for views on its proposals for possible areas for reform.
The consultation includes a renewed proposal for reform of the Wills Act 1837. Readers may remember that this particular project was included in the Commission’s 12th Programme, but was put on ice in 2017 in order to prioritise work on weddings. The project on Wills will recommence “as soon as resources allow”. The consultation closes on 31 July 2021.
The formalities required for making a valid Will have been in force for nearly 200 years. The requirements stipulated by the Wills Act 1837 can, on the face of it, seem archaic, unnecessarily complicated, and unsuited to the modern world. For readers unfamiliar with its contents, s 9(1) of the Wills Act 1837 states that a valid Will must be:
‘a) ….in writing, and signed by the testator, or by some other person in his presence and by his direction;
…
c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
d) each witness…:
(i) attests and signs the will; …in the presence of the testator…’
A counter-argument is that the formalities of the Wills Act should apply in any age and no matter how advanced the technology, in order to mitigate, so far as possible, the risks of fraud, abuse and undue influence (which is the reason behind the will-execution formalities).
A possible third stance is that the requirements of the Wills Act 1837 are at once necessary and outdated. In other words, the formalities are necessary in order to mitigate fraud and undue influence, but the mechanics of doing so could be changed and improved to embrace technology, while maintaining the protections given by the Wills Act 1837.
The issues surrounding the Will signing formalities were thrown into sharp relief during the Covid-19 pandemic. A greater number of people wished to put their affairs in order by making a Will, while at the same time the very act of making a valid Will was made more difficult because of social distancing, shielding, and the restrictions on meeting indoors. The very people most in need of making a Will – i.e., the elderly and vulnerable – found it most difficult, and were put at most risk in doing so.
The governmental response to this issue took some time, but the eventual solution – allowing Wills to be witnessed by remote means – was a welcome solution. The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order SI 2020/952 allows wills to be witnessed by ‘videoconferencing or other visual transmission’ (e.g. Zoom and Skype) while still complying with the requirements of s 9 Wills Act 1837. The SI will remain in force until 31 January 2022.
The risks inherent in having Wills witnessed remotely were highlighted at the time, and the overwhelming industry response was one of extreme caution. Have your Will witnessed remotely if you must, but be prepared for more challenges by disappointed beneficiaries and estate disputes, on the putative grounds that the Will execution formalities might not have been complied with.
In any event, The Law Society’s, and wider industry, guidance on remote witnessing should always be followed when witnessing a Will remotely, and remote witnessing should only be used as a last resort. If possible, a new Will should be made as soon as possible thereafter with physically present witnesses. Nevertheless, as a last resort, having a Will witnessed remotely is preferable to being intestate, even though it is risky, complicated, and administratively burdensome.
One question raised by the new legislation is: to what extent should remote witnessing be permitted once the pandemic has permanently subsided. Even after the pandemic is over, one could imagine many scenarios in which remote witnessing could be the most appropriate or the only way an individual could make a Will: isolated persons who cannot readily track down a suitable witness; persons who find themselves suddenly ill and who wish to put a Will in place before their health deteriorates further, etc.
In view of the benefits offered by remote witnessing, it is strongly arguable that the possibility to have a Will witnessed remotely should continue to be available after the pandemic. It may never be possible to mitigate the risks of undue influence and fraud to the extent that it is possible to do so when witnessing a Will in person, but that does not mean that the possibility to use remote witnessing should be avoided entirely. The Wills Act already permits the formalities to be avoided for soldiers / those in the navy on active service and mariners at sea, and so a permanent change to allow remote witnessing might not be as revolutionary as it first seems.
Of course, not all testators will be sufficiently computer-literate to be able to execute their Will by digital means; which is one reason why digital witnessing should always remain merely an option, and never a requirement.
The Law Commission’s project on Wills will report on the further potential use of technology in making a will (in addition to remote witnessing), such as the use of electronic signatures. This is welcome. It is hoped that, once the Law Commission’s project is able to make its final recommendations, the end result might be permanent legislative change to allow technology to feature more prominently (and permanently) in the making of a Will, to build on the steps taken during the pandemic, while maintaining safeguards for testators.
In relation to Lasting Powers of Attorney (LPAs), the Ministry of Justice and the Office of the Public Guardian announced earlier this year that they are working on a project to modernise LPAs. The eventual aim is to enable LPAs to be made and registered digitally. The project aims to increase safeguards for the donor against fraud, abuse and coercion, while improving the process of making and registering LPAs. Indeed, the MoJ is aiming to achieve “the same, or better, levels of protection” in any new digital system. The MoJ intends to launch a public consultation on this topic later this year.
It is hoped that lessons from the Law Commission’s Wills project and the MoJ’s LPA project might cross-pollinate, given the similar aims of both.