“Will” it Ever End?: Wills being signed on car bonnets during lockdown to abide by current laws
May 7, 2020
2 min read
What's going on here?
Wills are being signed on car bonnets during the coronavirus pandemic lockdown in order to adhere to laws regarding both correct procedure for will-making and current rules on social distancing.
What does this mean?
Strict laws dating back to 1837 in England and Wales dictate that in order for a will to be held valid it must be signed by the testator (the person writing the will) in front of two independent witnesses and then signed by two people in the presence of the testator. Due to the current guidelines regarding social distancing and self-isolation, these laws are becoming increasingly difficult to abide by. Novel ways of witnessing wills are being devised, one being placing documents under windscreen wipers to be witnessed from afar and then signing them on car bonnets. This has resulted in renewed calls for the 200-year-old laws to be updated and made more flexible, and yet the Ministry of Justice has stated that there are no plans to relax the current rules.
What's the big picture effect?
The rules of self-isolation and social distancing are in place most importantly for the protection of the elderly or those with underlying health conditions. And yet these are the people most likely to want to make wills during this uncertain time. It has been reported that there has been significant growth in the number of people wishing to draft wills since the lockdown came into force, with one report stating that these requests have increased by 30%. Even the current methods being adopted to abide by social distancing rules are flawed, as some advice states that the virus is able to survive on paper for up to 12 hours, and therefore could be transferred between those persons signing or handling documents even while keeping their distance. This leaves practitioners, who must arrange for wills to be validly signed but must also comply with government guidance to reduce social contact, in a very difficult position.
The Victorian-era laws in England and Wales are notably strict. For example, in Scotland, the regulations are less formal, requiring only one witness. In Australia the rules are the same, but judges are able to show discretion and flexibility to uphold wills. A 2017 Law Commission recommendation, which would allow English judges this flexibility, has been endorsed by the chair of the Law Society’s wills and equity committee as part of calls to modernise laws.
Further, a STEP (a professional body, comprising lawyers, accountants, financial advisors and other practitioners) recommendation has suggested that clients should be given the option of meeting via telephone or video call to draft and sign a will. However, for the time being, ministers have resisted the calls for change, wishing to protect the vulnerable against potential fraud. It seems that, for the time being at least, these inventive methods will endure in order to meet increased demand, leaving practitioners balanced precariously between the two sets of conflicting rules.
Report written by Elizabeth Cooper
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