Where there’s a Will, there’s a Way!

Advice  |   19 June 2020

The coronavirus pandemic has hit home to many the importance of ensuring their wills are up to date and reflect how they wish their assets to be distributed in the event of their death. Recent press coverage has also served to educate the masses that inheritance tax may be due as a result of their death. Properly drafted wills can serve as a useful inheritance tax planning tool and can maximise the inheritance tax allowances available to an individual or couple.

Surveys and polls carried out in recent weeks seem to indicate that will instructions have increased by as much as 30% during the pandemic as people panic and contemplate their own mortality. Whilst solicitors and will writers have risen to the challenge (even classed as “key workers” under Government guidance) there are many (some surveys indicate up to 58%) who do not have a will in place.

Most people are aware as to how important a will is and know they should have one, but perhaps have been put off by the formalities involved in making one. Those who leave themselves to the mercy of the intestacy rules need to understand the difficult position that they place their loved ones in – increased disputes about the distribution of assets and potentially more inheritance tax.

The requirements for a will to be valid in England & Wales are set out in Section 9 Wills Act 1837, an archaic piece of legislation that came into force some three weeks after Queen Victoria ascended to the throne. The rules are well-known and in the interests of brevity can be condensed as follows:

  • a will must be in writing
  • signed by the testator (the person making the will) or at his direction
  • in the physical presence of two, independent witnesses

There has been much debate and case law with regards to the witnesses, but the accepted view is that the witnesses and testator must all see each other sign the document.

It has been a long-established principle of English Law that those in “active military service” (including those under the age of 18) can make “privileged” wills that do not need to comply with the requirements of Section 9. A privileged will therefore does not need to be signed in the presence of two independent witnesses; it does not need to be witnessed at all. Furthermore, a privileged will does not even need to be written – it can be oral. Not only does this apply to soldiers but extends to all service and front-line personnel who are imminently likely to be posted to an operational area; it even extends to civilian support staff such as nurses, cooks and administrators. There is a suggestion that privileged wills should, at the very least, be extended to those on the front-line during the pandemic – our doctors, nurses and other healthcare personnel.

The Government has been considering amendments to the rules and has been in consultation with various professional bodies since the crisis began but as of yet, there has been no alteration to the rules in England & Wales.

Solicitors and will writers have risen to the increased demand and have embraced modern technology to help take instructions. Facetime, Whatsapp, Zoom, Teams, Webex and Skype are now all familiar means to communicate visually with our clients, although there are concerns that a solicitor has a limited ability to assess whether duress or undue influence is present. For the majority of clients (including many elderly), this works well, and in many cases is preferred above the traditional visit to the solicitor’s office, as clients can provide their instructions from the comfort of their living-room sofa or dining table. Drafts are then usually provided by email and once approved are sent out to the clients via post to execute – again, this is convenient as it means simply having to pop next door to the neighbours who act as witnesses (whilst maintaining social distancing). For those who are unable to arrange for their own witnesses, particularly those who have been self-isolating or shielding, solicitors have employed creative means for ensuring the requirements of Section 9 are met: witnessing at a distance across car bonnets and driveways or through a window.

Whilst practitioners have risen to the challenge, this has brought the Government’s decision to not relax the requirements, even temporarily, under scrutiny especially as other states have relaxed their rules in light of the difficulties associated with witnessing due to the need to maintain social distancing.

In New Zealand, an Immediate Modification Order was passed on 17th April 2020 allowing wills to be signed and witnessed using audio-visual links (e.g. Skype Zoom, Facetime). On 22nd April 2020, Jersey brought in The Covid-19 (Signing of Instruments)(Jersey) Regulations 2020 to permit the execution of wills via audio-visual link until 30th September 2020. Similar provisions were also introduced in Australia.

Whilst the Government is clearly concerned about fraud, many are arguing, perhaps rightly, that a temporary, time-specified, relaxation of the rules be introduced. For those who are unable to comply with the formal requirements or do not have access to audio-visual means of communication, having a privileged will would allow them to have their wishes with regards to their assets honoured and reduce the concern and anxiety that many feel at not having a will in place.

However, even if the formalities surrounding the execution of wills are relaxed, testators must still consider taking professional advice, particularly where there are difficult (or different) family circumstances or where the size of the estate would attract inheritance tax.

For more information please contact Zahra Kanani, Senior Associate in our Private Client team.