Social distancing, self-isolation and the validity of wills
In February 1779, the name of Honora Jenkins was added to the probate register of the Prerogative Court in York. Although 18th century wills were predominantly made by men, as more men than women then owned property, Honora Jenkins’s is one of a handful of women’s names on that page of the register. Two were identified as widows, one as a spinster, and Honora herself as “Gentlewoman” (the parish register of her burial records her as also being a widow). Only a little is known to posterity of her life and family. She had been born Honora Brooke in the village of Ninfield, Sussex in 1720, daughter of a man descended from a prosperous Yorkshire family, originally grocers in Coney Street, York, but one of whom, a loyal Royalist, had risen to become a baronet after the Civil War. Honora married John Jenkins, a customs house agent, in Rye, Sussex in 1747. On her father’s death in 1760, by which date he was living in Skelton, near York, she inherited his estate under his will in her own right, “not in any way subject to the debts or control of her husband” as a married woman’s property at that date otherwise would have been. She also inherited the estate of an uncle, the last Brooke baronet, who died a lunatic and unmarried in 1770. Childless and seemingly having moved to York in her widowhood herself, her power to decide who should inherit under her will was an important one. The precise date of her will is not recorded, but she died in 1778 and was buried, like other members of her family, in the church of St Martin, Coney Street. A Mr Dade inherited her estate.
In 1781, the validity of her will was questioned in the Court of Chancery in London. The law report of the case of Casson v. Dade is very brief but contains a vivid glimpse of a late 18th century woman of means as she sat in her carriage and folded up her will and put it into her pocket — a pocket then functioning more as a woman’s handbag does now. She had given instructions for a will to be prepared and went to her attorney’s office to sign it and have it witnessed, where -
Being asthmatical and the office very hot, she retired to her carriage to execute the will, the witnesses attending her: after seeing the execution [Honora’s own signature of the will] they returned into the office to attest it, and the carriage was accidentally put back to the window of the office, through which, it was sworn by a person in the carriage, the testatrix might see what passed; immediately after the attestation, the witnesses took the will to her, and one of them delivered it to her, telling her they had attested it, upon which she folded it up and put it into her pocket.
The Lord Chancellor, who decided the case, was satisfied that the will had been validly executed.
The modern relevance of Honora Jenkins’s will
The making of Honora Jenkins’s will has acquired a certain poignant resonance since the onset of the coronavirus crisis in England and Wales in March 2020. A significant increase in people making wills in the face of the feared extent of mortality of the disease has been widely reported, and I have read a number of accounts of solicitors arranging for wills to be executed and attested by witnesses in a contemporary variation on Casson v. Dade, with the testator sitting in a car outside his or her home or solicitor’s office, or with a window separating the testator and witnesses. An asthmatic like Honora Jenkins today would be particularly likely to wish to protect herself from direct contact with the witnesses to her signature on her will. In response to these concerns, the Law Society is currently in urgent discussion with the Ministry of Justice about possible changes to the law relating to signing and witnessing wills to simplify the process and reduce the risks of contagion carried by it.
The focus of these possible changes is the law which currently requires a will to be in writing, and which also requires the simultaneous presence of both the person making the will and signing it, or acknowledging his signature, and of two witnesses to that. The witnesses themselves must also either sign the will or acknowledge their signature in the presence of the person making the will (the testator). The witnesses must not be people who take any benefit under the will, or married to a person who takes any benefit. The source of that law is s9 and s15 of the Wills Act 1837, one of the first statutes to which the young Queen Victoria gave her Royal assent shortly after her accession to the throne. Honora Jenkins’ case pre-dated the 1837 Act, but it remains applicable to s9, and illustrates the degree of what is now called social distancing which is compatible with a valid process of writing, signing and witnessing a will under English law as it stands. There must at least be an available line of sight between all those concerned in the process. An excellent recent Equity’s Darling blog by barrister Charlotte John explains this in greater detail and discusses the practicalities of making and witnessing valid wills in the age of coronavirus.
Does the current English law of making and witnessing wills enable sufficient social distancing for the purposes of public health? The simultaneous presence of the person making the will and the two witnesses would not itself be a breach of regulation 7 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 UKSI 2020/350, because even if it involved a gathering in a public place (unlikely in itself) of more than two people who were not members of the same household, it would surely be “reasonably necessary … to fulfil a legal obligation” under regulation 7(d)(iv). The real question is whether the public health risk of simultaneous presence of testator and witnesses is sufficiently alarming to be a deterrent or obstacle to making a valid will at all, as anecdotal evidence suggests that it might be.
Changing the law of signing and witnessing wills
In 2016-2017 the Law Commission undertook a substantial consultation project and published a paper (Making a Will: Consultation Paper 231) on wide-ranging potential reform of the law of wills. This project was driven by recognition of the desirability of modernising the law of wills to take account of changes in society, technology and medical understanding since 1837. It has not yet led to any legislation or even a bill to be debated in Parliament, as the Law Commission considered that a project on the law of marriage should take immediate priority. But no-one then foresaw that the outbreak of a pandemic might prompt such an urgent review of some aspects of the law of wills. Now that that review is taking place, the Law Commission’s 2017 consultation paper is an indispensable reference source, for the formal requirements of making a valid will were of central importance to the project. As the Law Commission recognised, rules about formal requirements are important safeguards protecting the validity of wills, but this has to be balanced with the fact that, even in ordinary times, formalities act as a barrier to people making wills.
The Law Commission wants making a will to be simple and accessible. Their provisional proposals included a proposal that English law should introduce what is called a “dispensing power” permitting a court to validate a will — and not only a traditional document but an electronic document or audio or video recording — which does not comply with the conventional formalities, but which can be proved was intended to be a will. Several other English-speaking legal systems have such powers — notably some of the states of Australia, in which even an unsent text message has been recognised as valid under such a power. The Law Commission also discussed wills in the form of electronic documents without written signatures, and acknowledged their likely future relevance, although without any more detailed specific proposals for their validity. They also observed (paragraph 6.41)
While we have focussed on electronic signatures, the witnessing requirements will also be an important part of the formality rules. If electronic wills are introduced, the rules governing “presence” will have to be revisited. At a minimum, there will be a need to make clear whether witnesses have to be physically present or whether some sort of online presence (for example, videoconferencing) will suffice.
According to Ian Bond of the Law Society’s Wills and Equity committee, who is involved in these discussions, amongst the possible urgent changes to the law currently being discussed by the Ministry of Justice are the introduction of a dispensing power to validate a will, alternatively changes to the requirements of sections 9 and 15 of the Wills Act 1837, or the recognition of “holograph” (handwritten) wills without witnesses, as in some European legal systems. This last was not a proposal favoured by the Law Commission in 2017.
The timing, nature and extent and duration of such urgent changes are obviously a matter of great professional and public interest to those concerned with making wills, and it will be important to keep up to date with them.
Formalities and informalities
Pending or in the absence of any change to the formalities required by the law, are there any informal acts which have legal consequences for the estate of a person who has died?
Over the past thirty or forty years English law has increasingly recognised an obligation to do justice to fulfil, at least to some minimum extent, informal but intentional promises made about inheritance. This obligation can arise where the promise is sufficiently clear and the person to whom the promise was made has relied on it to his or her detriment, perhaps by working without pay, or by providing care to the person who has made the promise, and it would be “unconscionable” not to satisfy the claim in some way. Many such cases have led to protracted and bitter litigation, a significant number of them between members and generations of farming families. The outcome of such litigation is highly unpredictable, because it depends on the court reaching a number of conclusions on the evidence about the nature of both the promise and the detriment, and also applying a value judgment to the question of whether it would be unconscionable not to give some effect to the promise, and if so, how. A person contemplating their mortality in the event of a novel pandemic illness and wishing to put their affairs in order would be very unwise indeed to believe that an informal promise of this kind either would or would not take effect on their death with any certainty.
A much older informal route to inheritance is the deathbed gift, the Latin donatio mortis causa. As recently as 2015, in King v Chiltern Dog Rescue  EWCA Civ 581, a nephew claimed that his elderly aunt had made a gift of her house to him in an informal will document which he had prepared for her about a fortnight before her death. His claim ultimately failed in the Court of Appeal. His aunt was not contemplating her impending death, as she was not suffering from a fatal illness or about to undergo a dangerous operation. She had given him the deeds to her house, though, and it is a necessary element in a valid deathbed gift that there should be a handing over of documents or keys which give control of the property to the person to whom the gift is made. It is obvious that it would be very unwise to expect to be in a position to make a valid deathbed gift when facing a highly infectious disease which carries a risk of unpredictable and rapid deterioration in health as well as enforced isolation in its critical end stage.
A better and more straightforward last resort than a promise or a deathbed gift for a person who is absolutely unable through self-isolation to arrange to make a will which is validly written, signed and witnessed under present English law, would be to make a statement of their own wishes, in writing, or recorded in some way. Although such statements are not legally binding at all, they may at least bear some hope that their moral force will be respected, and bring some of the clarity and peace of mind that thinking about and setting down important wishes should.
None of these informal steps can properly compare with the certainty of making a will which is formally valid in accordance with the law in England and Wales currently in force. And however unwelcome and frightening the circumstances which prompt people to think about their wills, making a will is an important right and freedom for adults living now, no less than it was for Honora Jenkins over two hundred years ago.
 The person sitting in the carriage appears to have been Honora’s maid, who gave evidence that the carriage horses had reared up and moved the carriage back to bring the window and the witnesses attesting their signatures into Honora Jenkins’ line of sight at the crucial moment. None of these details appear in the law report itself, but are mentioned in a modern judgment in the Court of Protection, and must be drawn from archive research carried out by the judge in that case. And from a modern perspective on the weight of her evidence, the maid may have been neither independent, as a domestic servant, or entirely disinterested, for it is quite possible that there was a legacy for her, even if only of a sum to purchase a mourning ring, in the will.
Note: this blog contains general discussion of the law of wills in force in England and Wales on 29 March 2020. It should not be relied on as legal advice.