Honora Jenkins and her legacy — an update
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.
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 vocabulary
Earlier in the week in which I wrote, on Monday 23 March, the Prime Minister outlined the conditions of lockdown to which the country would be subject, initially for the next three weeks, and later that week, on 25 March the Coronavirus Act 2020 was fast-tracked to Royal Assent, and the first set of regulations, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 SI 2020/350, made under the Public Health (Control of Disease) Act 1984, came into force. These regulations, since significantly amended, restricted movement and gatherings of individuals, both indoors and outdoors, in a manner which severely limited many freedoms of everyday life.
Eleven weeks later
On 29 March 2020 the UK had just over 17,000 confirmed cases of COVID-19 and 1,019 deaths reported to the World Health Organisation. On 4 June 2020, those figures were 279,860 and 39,728 respectively. Inevitably, these initially rapidly increasing and very high infection and mortality figures, and the dominance of the outbreak of COVID-19 in the news, have led many people to confront their own mortality, and instruct solicitors to make or update wills for them. Solicitors acting in connection with the execution of wills were designated as key workers whose work is critical to the COVID-19 response when the regulations first came into force, and many have since reported sharply increased demand for their services. There are numerous anecdotal and media accounts of supervision of successful compliance with s9 of the Wills Act, coupled with a measure of social distancing, in gardens, driveways and inside and outside parked cars, all essentially along the same idea of maintaining a “visual sightline” as the signature and attestation in Honora Jenkins’ case.
s9 of the Wills Act 1837 and video recording of remote witnessing
In its 2017 consultation on wills (see paragraph 6.32), the Law Commission considered that it was “unlikely” that a will witnessed via a video conference would satisfy the statutory requirement of “presence”. Ian Bond, chair of the Law Society’s Trusts and Estates committee, has argued in a series of tweets that the Parliamentary debate on the Wills Act 1837 demonstrates that s9 was intended to ensure the “actual presence” of two witnesses in order to prevent fraud on the testator by substituting some other document for his will. Re Chalcraft  P 222, a case about an uncompleted signature on a deathbed will, clearly assumed that simultaneous physical presence of testator and witnesses was required.
Widely available live-stream video is a relatively new technology, and there is no English case in which the point has been litigated or decided. A number of English-speaking jurisdictions which have introduced emergency legislation to modify the local equivalent of s9 of the Wills Act 1837 have done so by making laws which authorise the use of video recording for the purpose of witnessing a will without physical contact or proximity between testator and witnesses. This broad consistency of approach around the world suggests that in each jurisdiction which has legislation similar or identical to s9, the prevailing view is that it does not permit remote “presence” as it stands.
In England, on 29 May 2020, the firm of Royds Withy King announced that it had arranged for a testator who was very ill with COVID-19 both to give instructions for his will and to have it remotely witnessed via WhatsApp video, with the solicitor and the solicitor’s wife acting as attesting witnesses. As described by Amanda Noyce, a partner in the firm:
“We were able to check that he was alone in the room to ensure he was not being coerced and then recorded his wishes. A draft Will was emailed to him. The signing of the Will was witnessed by his solicitor via a second WhatsApp video call and the solicitor’s wife. Both the solicitor and his wife signed the Will as witnesses”.
The solicitors ensured that their client was fully advised of the risk that the will would not be considered formally valid, and in the event of his recovering from illness and being able to do so, he was encouraged to re-execute the will with witnesses physically present. Another solicitor, Nicholas Bevan, who is also reported as having recently supervised the remote witnessing of a will via video link, is a more outspoken advocate for the validity of the process, and on 3 June 2020 wrote an open letter to Alex Chalk MP at the Ministry of Justice to “extol the benefits” of using video to live-stream remote witnessing, and ask him to make a practice direction permitting its use. In the absence of any such practice direction, and for those who may not share the same confidence in the validity of the process, could the court be asked to give a declaratory ruling, even in a testator’s lifetime? This would be a novel step in England, where the court’s probate jurisdiction is essentially a post-mortem jurisdiction only. In the Canadian province of Ontario, preparations were recently made for a test case to be heard along these lines, but it was pre-empted by emergency legislation coming into force instead. In a blog published on 1 June 2020, barrister Charlotte John argued for the existence of a power in England to make a declaration relating to the validity of a will before death. In the absence of any legislative change or guidance from the Ministry of Justice (could such guidance effectively change the law in any event?), perhaps there will now be a test case, either seeking a declaration before death, or disputing whether such a will should be admitted to probate.
Public understanding of the law
People who turn to professionals to draft and supervise the execution of wills can reasonably expect to be properly advised on the law affecting their validity. There is quite widespread popular misunderstanding of what is required. People not only believe that an informal statement made in an emergency and recorded and date-and-time-stamped in some way, is a valid will, but suggest that others to do so as well. It is extremely unlikely that any change to the law to permit more informal wills would be retrospective, leaving potential disputes and disappointments arising from wills which are made in the belief that they are valid, but which do not comply with the formalities required by law.
Prospective changes to the law of wills
Despite the level of public and professional interest in the subject, the law in England and Wales relating to the execution and witnessing of wills has not changed since novel coronavirus first reached the UK. There have been high-level discussions between the Ministry of Justice and the Law Society, and these are continuing. On 21 April 2020, Alex Chalk MP, Parliamentary Under Secretary of State at the Ministry of Justice provided an answer to a written question raised on 23 March 2020 by Lloyd Russell-Moyle, MP for Brighton Kemptown asking the Secretary of State for Justice
“what assessment he has made of the implications of social distancing for the requirement in the Wills Act 1837 that a person who may be a vulnerable individual be in the physical presence of two independent witnesses when signing a will; and if he will enable (a) video conferencing and (b) privileged wills in those cases during the COVID-19 outbreak.”
The answer to this question made it clear that the Ministry of Justice does not favour an extension of the law of privileged wills (wills made orally by those engaged in active military service), but is considering other reform measures.
Ian Bond, who is involved in these discussions, has also made some public comment on their progress, and barrister Charlotte John’s blog published on 12 May 2020 comprehensively reviewed some of the possibilities for a change in the law. It is likely that any change will reflect proposals favoured by the Law Commission in 2017. These include the introduction of a judicial power to dispense with compliance with formalities of execution and witnessing a will, provided that there is sufficient evidence of intention that the expression of wishes, in whatever form it takes, should have the effect of a will. There is a fuller discussion of dispensing powers in an article by Charlotte John and Juliet Brook, of the University of Portsmouth, published on Charlotte’s blog on 2 June 2020.
Quite apart from the scope and duration of any possible legislative change, there is also a question of process and available Parliamentary time to debate any primary legislation. It is notable (and widely regarded as objectionable) that much of the far-reaching emergency regulation in force since late March has been made by ministerial fiat in delegated legislation and not subject to Parliamentary scrutiny. The Coronavirus Act 2020 does not make any reference to wills, nor do I think its general enabling powers in s88 would extend to wills, nor am I aware of any other existing primary legislation under which changes to the law of wills, however limited in scope and/or duration, could be brought into force by regulations. And even if there was ready availability in the Parliamentary timetable, there is no wide-ranging draft Bill reflecting the work done by the Law Commission in 2017, so it seems improbable to expect substantial primary legislation in the near future.
Changes to the law in other jurisdictions
One of the striking features of the coronavirus pandemic is its rapid global spread, and the near-universality with which social distancing and other public health measures have been introduced in many countries. A number of English-speaking jurisdictions (including Scotland, Jersey, New Zealand, the Australian states of Queensland and New South Wales, the Canadian province of Ontario, the state of New York) with similar or identical laws to s9 of the Wills Act 1837 and broadly comparable societies to the UK have introduced emergency legislation on signing and witnessing wills in the course of March or April 2020. Although there are differences between them, all those mentioned follow a similar pattern of relaxing the requirement for two witnesses and simultaneous physical presence with the person making the will, by permitting the use of video technology for remote witnessing, in each case with conditions intended to protect the process from fraudulent misuse. On April 29 2020, the New York Times published an article under the heading “Where There’s A Will in England, There’s A Way”, in which it described our law as “archaic” and “forcing people to take drastic measures” and “choreograph old rituals” to accomplish socially distanced witnessing in their gardens. Only a careful reading and following a hyperlink from the article would have revealed that the law in New York state for valid execution and attestation of a will is, apart from its recent emergency amendment, precisely the same as the “archaic” law of England, and a newspaper in a jurisdiction in which the emergency law includes a provision for transmitting signature pages by fax is perhaps in no position to look askance at another country’s archaisms.
“Messages of Love”
A further development over the last three months has been the simultaneous launch on 2 May 2020 of a campaign by Gina Miller for a change in the law to extend unwritten ‘privileged’ wills made by members of the armed forces on active service to a wider public, and her “Messages of Love” website, which offers a free “digital memory box” for people to store messages and memories for those close to them. These messages may include statements of wishes, although these cannot take effect as wills. The website announces that
“Cameras on mobile phones and other devices, mean that carers and coronavirus patients can leave individual messages to loved ones, record their wishes if they haven’t had time to do a Will, or a message of wishes in respect of their children or their treasured possessions”
Following its launch, and in the light of some comments from Dr Brian Sloan of Robinson College, Cambridge, and others, the website now carries a statement warning users that oral wills are currently not legally binding in the UK. This is important, given the apparent wide public misunderstanding of the required formalities for a valid will illustrated earlier in this blog post.
Even if oral wills were to be made legally valid, the current set-up of the Messages of Love website appears unsuitable for the purpose of holding them. It invites users to deposit a range of memorabilia, including informal statements of wishes. How would these be distinguished from those which were intended to take effect as wills? The website permits users to designate and register a “nominee” who “will receive an email explaining that you have opened a memory box, but that they will only be granted access when they notify us of death and provide a death certificate.” But such a nominee has no legal status or duties. The nominee might coincidentally be a person entitled to take letters of administration on intestacy, but equally, might not, and is not equivalent to an executor, who, unlike a “nominee”, has legal obligations, and can be compelled to either administer an estate or be replaced. And although the website’s data is securely stored in a cloud at no cost to users, the website is owned by Centrum Campaign Limited, a small private company, itself wholly owned and controlled by Gina Miller (its 31 March 2019 filed accounts show assets of only c.£20,000 and a net deficit of assets to liabilities). This structure does not guarantee any long-term security, storage or accessibility of data, for instance in the event that the company were to be wound up or its ownership transferred.
The accompanying campaign to change the law also appears to take no account of either the 2017 Law Commission consultation, which itself involved liaison with a large number of people professionally concerned with wills, and the current discussions between the Ministry of Justice and the Law Society about prospective legislative changes driven by the coronavirus crisis. A serious proposal for law reform should engage with this work rather than isolate itself from it. The campaign is also surprisingly narrowly focused on the single proposition of extending the law of privileged wills, which is not one favoured by the Law Commission in its consultation, and which already appears to have been clearly rejected by the Ministry of Justice in the Parliamentary written answer of 21 April 2020. There are good reasons for this, more fully discussed in Juliet Brook’s blog recently published by the Society of Legal Scholars, and by Brian Sloan in a thread of tweets on 4 April 2020. A general dispensing power, requiring a judge to determine whether or not an informal statement really was intended to have the effect of a will, would be preferable to an extension of the law of privileged wills to an undefined category of people (those engaged in active service in healthcare and social care? the entire adult public? some other categorisation?), leaving both the integrity of the wishes, and the maker’s intention for the informal statement to take effect as a will in doubt in many cases. As the detail of emergency legislation enacted around the English-speaking world illustrates, witnesses still have an important role to play in safeguarding will-making from fraud and abuse, and a date-and-time-stamped video record alone is insufficient to validate an entirely remote process.
Now and the future
England is increasingly becoming the exception rather than the rule, by comparison with other jurisdictions in the English-speaking world which have passed emergency legislation to make the valid signature and witnessing of wills easier to achieve with a measure of social distancing or self-isolation. English law still requires two witnesses present at the same time as the person making the will, with all three participants also complying with restrictions on movement and gathering as prescribed in public health regulations in force at the time. With infection and mortality currently falling at different rates across the UK, progressive easing of restrictions on movement and gathering, and a long spell of fine summer weather, the practical difficulties of compliance have diminished for the time being. How far that will change in the future, and whether, and in what way, the law governing the formal validity of wills will also change, is for the time being unknown.