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Should those suffering with coronavirus be allowed to make oral wills during the pandemic?

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In these strange and unprecedented circumstances Ministers have been urged to use their emergency powers to relax the laws governing the execution of wills during the coronavirus pandemic.  Some campaigners argue those suffering from coronavirus should be allowed to make oral wills, in the same way soldiers and sailors can in some circumstances.

The current rules surrounding oral wills

At present a valid oral will can be made by a soldier in actual military service or by a sailor at sea, whether or not they are over the age of 18, making an oral declaration (s.11 Wills Act 1837).  Evidence of the terms and validity of that oral will would then be submitted to the Probate Registry on death. 

The proposal that those suffering with coronavirus, whether in hospital or not, should be allowed to make oral wills leaves the testator and their families vulnerable to a multitude of potential accusations including those of undue influence, lack of mental capacity and that the terms of the oral declaration were not accurately reported along with the risk that a written will may be incorrectly proved due to lack of knowledge of a later oral will.

The current rules surrounding written wills

For all those other than a soldier in actual military service or a sailor at sea a valid will must be made by a person over the age of 18 and must be written.  The person making the will (“the Testator”) and the two independent adult witnesses must then execute the will.  In order for the will to be valid the Testator and the two independent adult witnesses must all be physically present at the same time with the witnesses first seeing the Testator sign the will and with the Testator then seeing the witnesses sign the will (s.9 Wills Act 1837).  This, of course, causes substantial issues within the current lockdown situation!

How to make a valid will in lockdown

Whilst it is clear witnessing a will via video messaging does not fulfil the requirement, under current legislation, for being physically present there is case law from 1781, Casson v Dade, which confirms witnessing a will through a window is sufficient provided there is an unobstructed line of sight.  As such, the Testator signing their will in front of a window with two independent adult witnesses on the other side of the window who watch the Testator sign the will with a clear and unobstructed view before the Testator posts the Will through the window for the two independent adult witnesses to sign whilst the Testator watches should satisfy the requirements for valid execution of a Will, based on this historic case law.

This is, however, far from ideal particularly if the Testator is in hospital suffering from the coronavirus.  Clearly there is a substantial and urgent need for the current law governing wills, which dates back to 1837, to be modernised perhaps to include the removal of the requirement for “physical presence” of the witnesses allowing for witnessing via video messaging.  This would ensure the safety of the Testator and witnesses whilst also allowing the Testator the peace of mind in knowing his wishes will be carried out should death occur.