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Necessity the mother of invention?

Posted on 4th May, 2020

With the world having to make sudden changes in the way we work and live our lives, this has, in the legal field, brought fresh challenges to our Private Client department particularly in relation to the execution of Wills.

The principle law that we abide by on a daily basis in the preparation of Wills, is the Wills Act 1837 which safe to say is fairly long standing!

The Law Society and Ministry of Justice have in the last few years been conducting a review of the Wills Act 1837, in light of how to bring the execution of Wills into the modern age. The Covid-19 outbreak, however, has certainly now brought the legalities and practicalities of Will making to an immediate head. Certainly, in recent weeks there has been consideration as to both the short term and long-term ways of updating the legal position on the execution of Wills.

The immediate issue when lockdown began was how to facilitate the signing of Wills. To be valid, a Will must be signed by the person making the Will in the presence of two independent witnesses. It is strange to think that this had never been an issue. I had never given a second thought to at all, but with social distancing it suddenly became hard to envisage how three people could come together to sign one document.

It is thanks to some historic case law (if I recall correctly a lady fainting had having to retire to her carriage to rest!) that the ‘line of sight’ test was established meaning that the witnesses to a Will did not need to be in the immediate proximity provided they could see each other and the Will being signed.

Bring forward April 2020 and we see Wills being executed through open windows, on car bonnets and over garden fences! It is incredible to see how resourceful we can all be however, I know these are still far from ideal for social distancing purposes.

Alternatives raised as short-term solutions to this problem include to remove the need for two independent witness, to allow beneficiaries to be witnesses and to allow verbal Wills to be made in cases of extreme urgency. It is safe to say that the witnessing requirements of a Will are the bedrock of providing legal safeguards and the fact that this has stood the test of time for nearly 200 hundred years, is not something to be tackled lightly. Whilst these changes may ease people getting Wills put in place, they would lower the bar in terms of protecting the person who is making in the Will and perhaps would cause more problems than they would solve.

It is clearly a balancing act and it will be interesting to see what the Law Society and Ministry of Justice have considered and continue to consider. I feel that with an easing of lockdown on the horizon that these drastic alternative options may not need to be brought to the fore.

What I think will have a lasting impact, and will emerge from the current crisis will be Wills going digital. I feel that as an area of law we are quite traditional; face-to-face meetings, Wills printed on parchment paper neatly tied with ribbon and wet ink signatures placed upon these. With the digital age thrust upon us with video calling on a whole manner of platforms, it raises the question that can seeing our clients and seeing them sign a document ‘virtually’ over wide link become acceptable in the eyes of the law? Can ‘in the presence of’ be a virtual presence?

Whilst I think there remains a lot of merit in face to face appointments (and to be honest is its quite nice just sitting over the same table form someone!) digital Wills could broaden the Will making process geographically and make the process more accessible.

I will also be intrigued to see if progress is made regarding ‘e-signatures’ on Wills. Whist the Law Commission previously decided that these could not be valid on Wills, perhaps this is to come too if we emerge to fully embrace the digital age.

Whilst it is interesting to consider the short-term legal changes, I think for now we will remain reliant on the practical steps which can be taken to comply with the formalities of the Wills Act 1837. I feel that the real impact will now be in what may arise in the longer term. Is it time, after almost 200 years, to modernise world of Wills? If necessity is the mother of invention, will digital Wills become the part of our everyday work? This will certainly be groundbreaking stuff. Let’s watch this space…

If you would like to speak to someone at Jacksons’ Wills, Trusts and Probate department, please email Helen Milburn at or call 01642 356500.

Helen Milburn, Associate Solicitor, Wills, Trusts & Probate


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