Covid-19 has heightened the debate concerning the draconian nature of Will legislation that leads to unnecessary pain and hardship for the families of those who die without a Will. Whilst the Coronavirus pandemic has resulted in a surge in people wanting to make a Will, with many law firms reporting an initial 70 – 100% rise in enquires, the Wills Act of 1837 has created a UK system that is outdated, requiring a wet signature and two witnesses to be present in person. These strict requirements of an Act that is almost 200 years old have proven enormously challenging during lockdown and social distancing. This has led to unnecessary anxiety and stress as people worry that their wishes would not being followed, loved ones would not be provided for, and the prospect of grieving families having to deal with affairs not left in order.
Troubled by the inhumanity of the situation, Messagesoflove.co.uk commissioned research that found:
- Approaching three in five (58%) UK adults do not have a Will.
- Those belonging to social grades ABC1 are significantly less likely to have a Will than those belonging to social grades C2DE – (35% compared to 45%).
- Half (51%) of those who live with their spouse or civil partner have a Will.
- Of those who have Wills, over half (55%) aged 18 – 34 say they have experienced a change in family circumstances (e.g. marriage, divorce, birth of a child/children) since making a Will; with 22% of all adults who have a Will saying their circumstances have changed.
- Three in ten (29%) of UK adults who have children and a Will say they do not have a Guardianship arrangement for their children in their Will.
- Around half of UK adults support temporarily allowing digital signatures or audio-visual witnessing when completing a Will during the Covid-19 pandemic (47% each). UK adults expressed a preference for audio-visual witnessing rather than digital signatures were temporary emergency witnessing laws enacted.
With 15% of Brits having no savings at all and one in three Brits with less than £1,500 in savings, making a Will is not just about money or assets, Wills also address important issues such as Guardianship, funeral arrangements, sentimental possessions, pets and charitable donations.
Gina Miller, Founder of Messagesoflove.co.uk said “Laws must reflect changes in society and be updated for the internet age we live in. The Government has brought in temporary emergency legislation in other areas such as mental health during the pandemic, and we believe the peace of mind, emotional and financial security that can be gained by updating Will legislation far outweighs any other concerns. This is not about money but people having the peace of mind that their wishes will be followed.
It is shameful that this is not being urgently addressed by the Government when you consider that in cases where there is no Will containing guardianship arrangements, it can lead to children not just losing their parent/s but losing their home and family if so, determined by the Court. Will legislation should be updated and made simpler to reflect modern society, thinking and living.
Even without the pandemic, there was growing concern about the archaic nature of paper Wills. The Government cannot ignore the growing number of people our research has found in favour of recording their last Will and testament on video, and using technology to improve access and simplicity. Storing such Wills in a secure digital Messages of Love online memory box creates additional levels of security.”
We are aware that the Government is considering reforms arising from the Law Commission review in 2017 (including digital signatures, informal wills and remote witnessing) but other countries have acted promptly in making emergency Will provisions. New Zealand passed the Epidemic Preparedness (Wills Act 2007—Signing and Witnessing of Wills) Immediate Modification Order 2020 on 16 April which allows for remote signatures and witnessing of multiple copies of the same Will via audio-visual link. Australia and the USA have also passed emergency legislation to make it easier for Wills to be made during coronavirus. The UK public deserve the same compassionate action.
It must be remembered that if there were any concerns about the legalities of a Will created under an emergency enactment, concerned potential beneficiaries would still have access to the Courts to dispute the validity of the Will. In most cases, audio-visual witnessing of Oral Wills simply ensures that people can effectively and definitively record their wishes in a legally binding manner.
Under the current laws, if a person does not have a valid Will in place, the rigid laws of intestacy apply, which appears to disproportionally affect unmarried partners. ONS research shows that cohabiting couples are the fastest growing family type as people increasingly choose to live together before, or without, getting married (increase of 25.8% over the decade 2008 to 2018). When you consider that our research suggests that only three in ten (31%) of those who live with their significant other (i.e. non-married partner) have a Will the magnitude of this issue becomes self-evident. This group of people particularly deserve the ability to make a Will under emergency provisions should they fall victim to coronavirus.
Samantha Warner of Arken.legal, who are also advocating for law changes around digital signatures and emergency legislation to allow remote witnessing said “Arken.legal has been an industry leader in supplying professional automated Will writing systems almost thirty years. With the advances in technology, it is now possible to create a robust and comprehensive Will remotely, and therefore complying with social distancing. The difficulty is in executing a Will – the current Victorian legislation requires a person to sign their will in the physical presence of two witnesses. This has been rendered virtually impossible in many cases by social distancing regulations and hospital no-visitor policies.
One area of particular concern to us at the moment is that of how inequitably unmarried couples are treated under the rules of intestacy and how vitally important it is that they should be able to create a valid Will. Many wrongly think that the law offers them the protection and rights accorded to married people because they are “common law husband and wife” by virtue of long-term cohabitation. Sadly, they are almost three hundred years out of date in their belief, as common law spouses have not existed in English law since 1753.
Under English law, unmarried cohabitees are treated as completely independent people and absolutely no provision is made for them under the laws of Intestacy. It doesn’t matter how long they have lived together, they are entitled to no part of the estate, and, often just as distressingly, no say in the administration of the estate or the funeral arrangements. The current witnessing requirements of the Wills Act 1837 disadvantages unmarried people, as well as many others, and can create absurdities and great injustices. We believe updating the entire legal framework is long overdue, but in the short term, we need emergency legislation to enable people to execute a Will even in times of social distancing to keep themselves and their loved ones outside the vagaries of the intestacy regime. We support the call for this to be in place now to ensure readiness in the event of a second wave.”
Baroness Helena Kennedy QC, the prominent human rights advocate who is supporting Mrs Miller’s calls for legislative change, added “In situations of serious threat to life it should be possible for someone to express their wishes verbally and have those wishes recorded in the presence of witnesses, or for voice recognition technology to be used for verification. People in extremis may want to give directions as to who should care for their children or receive assets. The law should accommodate this.”
In view of our findings and the actions other governments have already taken, we urge Prime Minister Boris Johnson and his Government to act swiftly and with compassion to bring in temporary emergency Will provisions before the UK is hit by any future wave of the coronavirus pandemic.