Supported will-making before the Wills Act 1837

In late May 1833, four years before Queen Victoria came to the throne of the United Kingdom and shortly afterwards gave Royal Assent to the Wills Act 1837, Starkey Jennings, a man who had been paralysed by a stroke and partially lost his power of speech, made a will. It is an unusual will because he was given considerable help to make it, when his paralysis would otherwise have prevented him from doing so at all. …


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Update: 9 November 2020 — judgment in Attorney General v. Zedra Fiduciary Services UK Ltd [2020] EWHC 2988 (Ch) has now been published on BAILII, upholding the validity of the National Fund as a charitable trust for the purpose of discharging the National Debt and deciding that the court can make a cy-pres scheme altering the charitable purposes of the trust. A future hearing will decide whether this scheme should be one which directs payment of the National Fund towards reduction of the National Debt or some other charitable purpose.

The published judgment has also revealed the identity of the founder of the National Fund as Gaspard Farrer [1860–1946], a partner of Barings and a member of the Farrer solicitors’ family, depicted standing on the right in the painting above.


Lost and Found — 1860–2020

This is the story behind and beyond the facts and evidence in Ommanney v Stilwell (23 Beav 328) 53 ER 129, a case decided in the High Court in England in 1856. The court had to consider the unknown date of death of naval lieutenant Edward Couch, an officer of HMS Erebus, one of the two ships of Sir John Franklin’s lost Arctic expedition of 1845, in order to determine who should inherit under Edward’s will. …


FS v RS and JS [2020] EWFC 63

In 1984, the now-defunct Trustee Savings Bank adopted the memorable advertising slogan “The Bank That Likes To Say Yes”. The customers they were saying “yes” to then were paying interest of 12.5%[1] on mortgage borrowing, at a time when average earnings for men and women were about £5,000 per year[2], and average property prices in the UK about £26,500[3].

By 2012, nearly thirty years later, the phrase “the Bank of Mum and Dad” had entered the dictionary[4], perhaps originally coined as a joke, but now widely and seriously used to describe the phenomenon of “baby boomers” born between 1946 and 1964 providing financial assistance to their “millennial” children born between 1981 and 1996. By January 2019 researchers at LSE[5] found that the Bank of Mum and Dad was among the top ten lenders in the country, and that, although the expression usually refers to assistance to purchase otherwise unaffordable houses or flats, the average price of which is about 10 times what it was in 1984, in fact this only accounts for a fraction of financial support from parents of this generation to their adult children. …


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Introduction

On Tuesday 15 September 2020, the Court of Appeal gave judgment in R (Delve and Glynn) v. The Secretary of State for Work and Pensions [2020] EWCA Civ 1199. Julie Delve and Karen Glynn are two women in their sixties who brought a judicial review application, claiming that legislation which increased the state pension age for women born between 6 April 1950 and 5 April 1960 (“50s women”) was unlawful. Ms Delve and Ms Glynn were supported by a campaign called #BackTo60, which, as its name suggests, aims to restore a state pension age of 60 for 50s women, who are said to number up to 3.9 million in total. …


This blog is the fourth instalment in a series which I have written over the past six months on the prospective changes to s9 of the Wills Act 1837 to meet public health requirements of social distancing in signing and witnessing wills in England and Wales during the coronavirus crisis. The previous instalments are:

29 March 2020 — discussing the issues during the first week of lockdown in England and Wales

6 June 2020 — an update in the light of developments

21 August 2020 — discussing the guidance published by the Ministry of Justice and STEP on 25 July…


Formalities of will-making in England and Wales during the coronavirus pandemic

This is an update to blogs I have previously published on this subject on 29 March and 6 June 2020, and accompanies a webinar broadcast by my chambers, 5 Stone Buildings, on 21 August 2020.

On 25 July 2020, just before the end of the legal and Parliamentary year, the Ministry of Justice announced that the Government would be introducing legislation in September 2020 making changes to the attestation requirements in the Wills Act 1837. This announcement had been anticipated for some time, and follows well after similar legislation introduced in English speaking jurisdictions around the world which have the same fundamental law as is in s9 of the 1837 Act. This intended legislation will be both temporary (expiring on 31 January 2022 unless that period is itself shortened or extended) and retrospective, to 31 January 2020, the date of the first registered coronavirus case in England and Wales. These are both novel features of the law on the formal validity of wills, which otherwise tends to have the same sort of long-lasting durability as wills themselves. There is also something rather reminiscent of the Cheshire Cat in Lewis Carroll’s Alice in Wonderland in the sequence of events. An official announcement and published guidance precede the legislation itself, in the same way that the Cheshire Cat’s grin appeared hovering above a tree before the rest of its body came into view. …


A man who had lived in this street in Islington for most of his long life died of Covid-19 in the first week of April. His wife had died a few years before him, of a lung disease caused or exacerbated by the fibres she had inhaled decades earlier, as a young woman working for an upholsterer in the Caledonian Road. After her death her husband had rapidly become lost to himself, descending into confusion and wandering in the street, the pugnacious temperament of his youth as a boxer still discernible, but grown feeble in his dementia, as he accosted passers-by. His son had arranged for him to be removed to a care home, where he died, like many others this spring, frail and defenceless against the novel virus. He could not have foreseen or imagined the sparse funeral, imposed by the emergency laws, with which his presence in the world would end. He would have expected an old-fashioned London working class send-off like his wife’s, the pavement filled with floral tributes spelling out his name, and more (at hers, the florist had created one in the form of a handbag with a Chanel logo fashioned out of black roses) extending the entire length of the terrace of houses, men from the underworld in cashmere coats and sunglasses, a fleet of black cars following the hearse, and drinks for the mourners at the cosy boozer at the end of the road afterwards — had it not been turned into apartments the previous year. …


“Linked households” in the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (№4) Regulations 2020 SI 2020/588

The Prime Minister’s daily press briefing on Wednesday 10 June 2020 introduced the concept of the “bubble” for social contact between single people living alone, who have been isolated from other households during the coronavirus crisis. The burden of this long period of solitary life, even on young and middle-aged people in good health, should not be underestimated.

“Bubble” is not a very legislative-sounding word (a Bubble Act was passed in 1720, but that was its colloquial rather than official name), and the Prime Ministerial bubbles have now become defined in law as “linked households”, in regulations published on Friday 12 June, the majority of which came into force the following day. These regulations are the fourth amendment to the principal regulations, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 SI 2020/350, which came into force on Thursday 26 March 2020, and which imposed stringent restrictions on movement and on gatherings of people outdoors and indoors during the coronavirus crisis. The restrictions, which are enforceable as criminal offences, have been gradually and successively relaxed through three previous sets of amendments since March 26. Much valid criticism has been expressed of the use of emergency powers to bring these regulations into force without any Parliamentary scrutiny, and about discrepancies between the law, the government’s guidance, and police and prosecutorial conduct in dealing with the offences created under the regulations. …


Coronavirus and the validity of wills in England and Wales

The arrival in the UK of novel coronavirus SARS-CoV-2 in early 2020, and the public health measures introduced to limit the rate of infection caused by it, have raised the question of whether it is possible to make a will in England and Wales which complies both with the law on formal validity of wills (in particular s9 of the Wills Act 1837), and with regulations which limit or restrict social contact between people.

Background

I first wrote about this subject in a blog published on 29 March 2020, taking as a starting point the will of Honora Jenkins, made in the 1770s, which was the subject of litigation about its validity after her death (in Casson v Dade (1781) Brown’s Chancery Cases 99). Honora Jenkins suffered from asthma and her attorney’s office was hot, so she sat in her carriage outside and watched through the window as the two witnesses in the office attested the will which she had just signed. Since that decision, it has been accepted that so long as the person making a will and the two witnesses are in each others’ visual sightline, the law now in s9 of the Wills Act 1837, requiring the simultaneous “presence” of testator and both witnesses, has been complied with. This historic case has found a renewed relevance since the concepts of “social distancing” and “self-isolation” entered our collective…

About

Barbara Rich

English barrister & mediator — specialising in disputed succession & decision-making for people who lack mental capacity

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