- Wills in COVID-19 – where there’s a will, there is already a way
Wills in COVID-19 – where there’s a will, there is already a way
Wills in COVID-19 – where there’s a will, there is already a way3rd June 2020 - Published by
Gina Miller, with the support of Baroness Kennedy, is campaigning for the rules around the execution of wills to be relaxed during the current pandemic and brought up to date. While a change to the current Wills Act 1837 would be very much welcomed by the legal sector, do the changes suggested have the best interests of the vulnerable they say they want to benefit from the change?
In this opinion piece, tax partner Elaine Roche discusses her thoughts around the topic and how much of an effect COVID-19 is having on the law.
What do the current laws say?
Currently, to be valid, a will must be signed by the person making the will in the presence of two independent adults, who then both also sign the will. The current lockdown means that people are not allowed to meet, although the rules are already loosening. Ms Miller is advocating wills should be allowed to be made verbally on video or signed with a digital signature, which would bring the law up-to-date. However, both these options raise more problems than they solve.
Roche says: “There are a few tech issues with this. I’m all for the use of tech, as it can greatly enhance our lives, however it is an area where things move quickly – my four–year-old iPad is too old to support the LinkedIn App. Wills are often made and not revisited for decades. Currently, I’m dealing with an estate where the will is dated 1995, which is not uncommon. If that will had been recorded using the most up–to-date tech at that time – a 3 ½ inch floppy disc – we’d be struggling to access the details now.”
As well as this, there are issues with video wills, as you are not always able to tell who else is in the room and whether the person making the will has been unduly influenced to make the will.
Roche puts this into perspective: “We’re approaching three months into lockdown and even those of us with the most robust mental health are starting to go stir crazy in forced close proximity to our families. Now, imagine you’re 80. One of your family has moved in to look after you during lockdown. You’ve not seen another person in three months. Even if your mental health is robust and you, with full mental capacity and no undue influence from that family member, make a video will leaving everything to that person to thank them, there’s a huge opportunity for another family member who isn’t going to inherit anything to object to the will. And how can it be proved that you were just thankful, or that person had spent 12 week poisoning your mind against the rest of the family?”
As a solicitor specialising in wills and estate planning, Roche wants everyone to have a will. In England and Wales, individuals have the freedom to leave their estate to whomever they want, so she believes everyone should use that freedom. However, it must be done in such a way as to make sure those wishes will be legally enforceable when individuals pass away. Despite the current lockdown measures, it is still possible to get a will signed. The witnesses can stand the other side of a window, using their own pens and passing the will through the letter box. Alternatively, a will can be signed “at the direction of” the person making the will, so the paper document does not even have to be passed to the vulnerable person.
If you or a family member are thinking about putting a will in place and want help to ensure that your will is valid, does what you want and won’t get challenged after you’ve gone, then please contact Elaine Roche on 0161 838 8123 or email firstname.lastname@example.org