Honora Jenkins and her legacy — laid to rest at last?
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 2020
On Friday 4 September 2020, the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952 (“the Order”) was made by the Lord Chancellor, Robert Buckland, and on Monday 7 September 2020 it was laid before Parliament. Unless annulled, it will come into force on 28 September 2020, with both retrospective and temporary effect, applying to wills made between 31 January 2020 and 31 January 2022, although its duration may be either shortened or lengthened by further delegated legislation.
Amendment to the Wills Act 1837
The title given to a statutory instrument is functional. It “should give an accurate indication of the nature of the SI and distinguish it from all others”. The title of this statutory instrument is both functional and highly evocative of the past, present and future of the law of validity of wills in England and Wales. The past is the reference to the Wills Act 1837, the statute to which a very young Queen Victoria gave Royal Assent at Kensington Palace in the second week of her reign, on 3 July 1837. The past is also the decision in Casson v. Dade (1781) Brown’s Chancery Cases 9, on the validity of the will made by the asthmatic widow Honora Jenkins, sitting in her carriage outside the hot and stuffy office of her attorney as her witnesses signed their names to her will in the office, in York in the 1770s, in the reign of Queen Victoria’s grandfather George III. The evocation of the present is the novel coronavirus disease SARS-CoV-2, first identified in December 2019, and its impact on mortality and fear of mortality, and on social contact between individuals who do not live together, which has been subject to varying regulations made under public health legislation in England and Wales since 23 March 2020. As paragraph 2.1 of the Explanatory Memorandum accompanying the Order explains, it is intended to support people who are making a will under the conditions of the coronavirus pandemic which have created difficulties in observing normal will-making formalities. The evocation of the future is electronic communications and their specific relevance to the making of a valid will. The Order has been made under an enabling power in section 8 of the Electronic Communications Act 2000, as discussed in my previous blog in this series. Neither any previous Wills Act, nor the hastily-enacted Coronavirus Act 2020 contained any relevant enabling power, and it would have been difficult or impossible to find time for primary legislation in the Parliamentary timetable.
As also discussed in the immediately previous and earlier blogs in this series, the Order was foreshadowed in an announcement made by the Ministry of Justice on 25 July 2020. It followed months of discussion and speculation about the prospective change in the law, with several other English-speaking jurisdictions around the world with similar or identical laws enacting their own coronavirus-driven amendments in the meantime. The Explanatory Memorandum published with the Order sets out the background and policy context to it. Two important points stand out. Firstly, as set out in paragraph 6.2, the Order has been drafted on the basis that s9 of the Wills Act 1837 as it stands does not permit anything other than face to face presence, with testator and witnesses within the potential visual sightline of each other. This is consistent with the Law Commission’s view as expressed in their 2017 consultation report. Secondly, as set out in paragraph 7.5 “the Government considered many other options for reform of will-making in the pandemic, but has chosen not to pursue certain reforms in view of the perceived risks of undue influence or fraud against a testator”. This underlines the fact that the present law is neither obsolete nor draconian in the oppressive sense suggested by some campaigners for reforms permitting oral or video-recorded wills, but provides important safeguards for testators and their beneficiaries.
The Order is a very short instrument. Its operative provision, paragraph 2, amends section 9 of the Wills Act 1837 by converting its existing text into sub-section 9(1) and adding a new sub-section 9(2).
Section 9 of the Wills Act as amended will read as follows:
Signing and attestation of wills
(1) No will shall be valid unless —
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c ) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either —
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.
(2) For the purposes of paragraphs (c) and (d) of sub-section 1, in relation to wills made on or after 31 January 2020 and on or before 31 January 2022, “presence” includes presence by means of videoconference or other visual transmission.
This is a modest but important change to the law of formalities of wills in England and Wales. Although temporary, it may well survive into permanent legislation envisaged following the resumption of the Law Commission’s wills project commenced in 2017. The core element of compliance with the legislation is simultaneous presence via video link of the person making the will (the testator) and the two attesting witnesses at the time when each respectively signs or acknowledges their signature to a single document on which the will is written. If this provision, or some modification of it, does survive beyond 20 January 2022, it may well be accompanied by a dispensing power which enables the court to give effect to a will which does not strictly comply with the law, but comes close to doing so, and which was made with testamentary intention.
I discussed the guidance published both by the Ministry of Justice and the professional body STEP in detail in the previous blog in this series. As can be seen, this guidance contains considerably more detail than the legislation itself, although it is not inconsistent with it. The relationship between the guidance and the legislation is both less ambiguous and less consequential for personal freedom than is the case for much of the emergency regulation during the period of the coronavirus crisis in the UK. Nevertheless, the difference between a will which complies with s9(2) and one which does not is important, particularly in the absence of a dispensing power for any that are not compliant.
Wills already admitted to probate/letters of administration on intestacy
The Order also contains paragraph 3, headed “Saving Provision”. This is as follows:
“Nothing in this Order affects -
(a) any grant of probate made; or
(b) anything done pursuant to a grant of probate, prior to this Order coming into force”
The Order does not spell out whether this applies only to full grants of probate permitting distribution of assets, or includes limited grants as well. Assuming that it applies to full grants of probate, then a will which complies with the new s9(2) of the Wills Act made between 31 January 2020 and 28 September 2020, superseding and revoking a will made at an earlier date, will be of no effect if the earlier will has already been admitted to a full grant of probate before 28 September 2020. By definition, any will already admitted to probate is one which a probate registry has accepted as made in compliance with s9 in its original form, so the question will only arise in relation to attempts to make a later will which would not comply with s9 in its original form, but would comply with s9(2) as set out in the Order. Unhelpfully, paragraph 7.6 of the Explanatory Memorandum, uses a slightly different reference date. It says “The legislation does not apply to grants of probate issued before this instrument was made” which would indicate a date of 4 September 2020 rather than 28 September 2020, and continues “nor does it affect anything done pursuant to a grant of probate being issued prior to the legislation coming into force”, which is consistent with paragraph 3(b) of the Order.
By contrast, if a person has died intestate, that is without having made a will, or having previously revoked a valid will, and a grant of letters of administration has been made to their estate, a s9(2) compliant will made between 31 January 2020 and 28 September 2020 will be eligible for a grant of probate. This is explained in paragraphs 7.6 and 7.7 of the explanatory memorandum published with the Order. Paragraph 7.7 says “As distinct from grants of probate, the legislation does apply to grants of letters of administration (issued when a person dies without having made a will), provided that the video-witnessed will was made on or after 31 January 2020”.
The distinction made between existing grants of probate and existing letters of administration is obviously a policy decision, allowing people’s attempts to make a will where they have not done so previously to take effect rather than resorting to the default provisions of intestacy. What if letters of administration have been obtained, assets collected, debts paid and distributions on intestacy already made to the beneficiaries entitled on intestacy, who differ from those entitled under the s9(2) compliant will now admissible to probate? This may give rise to some difficult questions of recovery or unjust enrichment of the type considered in Re Diplock  AC 251. It also appears from a literal reading of the wording of the Order and the explanatory memorandum that letters of administration with the will annexed (a type of grant made by the probate registry where someone other than the executor(s) named in the will becomes entitled to administer the estate, but in accordance with the provisions of the will, not on intestacy) would be superseded by a later s9(2) compliant will. Barrister Charlotte John, in her 10 September 2020 blog takes a different view, however, and considers that a purposive interpretation of paragraph 3 of the Order would treat these as if they were grants of probate.
The saving provision in paragraph 3 would not prevent beneficiaries of a 31 January to 28 September 2020 s9(2) compliant will which was of no effect because an earlier will had already been admitted to probate from arguing that their will is valid as compliant with what is now s9(1), even though the simultaneous presence of testator and witnesses was via video-link rather than face to face. But it is obvious that this would be a very difficult argument with which to persuade a court, particularly given the wording of paragraph 6.2 of the Explanatory Memorandum which starts from the premise that this would not comply with what is now s9(1).
It is possible, if not likely, that all these questions will be academic and not give rise to any real-life consequences. But the best way to understand them is to consider some fictional examples. In each case, assume the following initial facts:
John Jarndyce made a will in 1982 leaving his estate to Harold Skimpole and appointing him as his executor. On 30 March 2020, suffering from SARS-CoV-19, he made a video-witnessed will, compliant with retrospective s9(2) of the Wills Act 1837, leaving his estate to Esther Summerson and appointing her as executrix instead. He died on 8 April 2020.
On Monday 27 July 2020, having read the Ministry of Justice’s 25 July 2020 announcement, Harold Skimpole applied for probate of the 1982 will and obtained it before 28 September 2020. His grant of probate would be secure, and the will in favour of Esther Summerson of no effect.
Harold Skimpole, characteristically, renounced the executorship immediately after John Jarndyce’s death. Esther Summerson, equally characteristically, promptly applied for and obtained letters of administration with the will annexed before 28 September 2020. On a literal (but not purposive) reading of the Order, after that date she could seek revocation of that grant on the basis of the later will in her favour, and a grant of probate of that will instead.
Immediately after John Jarndyce’s death, Esther Summerson, knowing of the will in her favour, entered a caveat at the probate registry against any grant issuing for the 1982 will. Unless Harold Skimpole had taken prompt steps to warn off the caveat, it would remain in place for six months initially, and the later will in favour of Esther Summerson would be validated by the SI coming into force before Harold Skimpole had obtained a grant of probate for the 1982 will in his favour.
In the last few days of his life, John Jarndyce burned the 1982 will with the intention of revoking it, and so died intestate. A distant cousin obtained letters of administration on intestacy before 28 September 2020. Esther Summerson could nevertheless seek probate of the will in her favour.
Status of the Order and coming into force
The Order is subject to Parliament’s negative resolution procedure. This means that it has become law on the Lord Chancellor’s signature on 4 September 2020, and will come into force as provided for in paragraph 1 of the Order itself, unless a motion to reject it is agreed by either House of Parliament within 40 sitting days.
On 8 September 2020, the day after the Order was laid before Parliament, Early Day Motion 865 (“the EDM”) was tabled, seeking the annulment of the Order. The sole signatory of the EDM was John Stevenson MP. John Stevenson is a solicitor, who was in private practice, specialising inter alia in wills and probate until his election to Parliament in the 2010 General Election. He is Conservative MP for Carlisle. I have not been able to find any published statement on his website or social media about the thinking behind his EDM, and the grounds on which he objects to it coming into force. It may be that he thinks that it should not become law because it creates too great a risk of fraud or undue influence. He is not alone in this view. Or he may consider that the amendment is technically invalid in some way. It remains to be seen whether a debate on his EDM will be arranged, but it seems unlikely that the Order will be annulled. The last time that this happened to a negative procedure statutory instrument was in 1979.
Is the Order ultra vires?
A discussion point which has arisen since the Order was laid before Parliament is whether or not it is ultra vires the enabling provision in s8 of the Electronic Communications Act 2000. The question is whether legislation with retrospective effect can only be made under an enabling power where there is “clear provision” for this. s8 of the 2000 Act, as amplified by s9(6), is a power with very wide implications, but neither these provisions nor anything in the explanatory notes which accompany them deal specifically with retrospective effect. It is possible that sufficient “clear provision” could be found in s9(6), which states that
(6) The provision made by [a s8 order] may include —
(a) different provision for different cases;
(b) such exceptions and exclusions as the person making the order may think fit; and
(c ) any such incidental, supplemental, consequential and transitional provision as he may think fit;
and the provision that may be made by virtue of paragraph (c ) includes provision modifying any enactment or subordinate legislation or any scheme, licence, authorisation or approval issued, granted or given by or under any enactment or subordinate legislation.
The closing words of sub-section (c ) certainly encompass modifications to acts or delegated legislation or even to non-statutory arrangements already in existence, and to that extent have clear implied retrospectivity. The underlying question is one of fairness. The extent to which it may make “clear provision” for the Order to have retrospective effect is further discussed in Charlotte John’s blog of 10 September 2020. Like Charlotte, I do not specialise in public law and would be interested in the views of those who do.
Now that the Order has been laid before Parliament, unless there are developments in the progress of Mr Stevenson’s EDM and/or an ultra vires challenge to the validity of the Order, I do not intend to write any further instalments of this blog unless and until there are statistics and/or litigation arising from wills made after 31 January 2020 to consider.
In the course of writing these blogs, remote from colleagues and friends in chambers, I have had the benefit of several discussions via social media and reading longer-form commentary from other lawyers with a specialist interest in this subject: barristers Charlotte John @lottiejohn of Hardwicke Chambers and Alexander Learmonth @alearmonth of New Square Chambers, solicitor Ian Bond @IanBondTEP of the Law Society’s Wills and Equity Committee, who has been actively involved in the negotiations with the Ministry of Justice, Levins solicitors @levinslaw, academic lawyers Brian Sloan @briandsloan of Robinson College, Cambridge, and Juliet Brook @julietcbrook of the University of Portsmouth, and legislation-watcher Richard Greenhill @richgreenhill. I am very grateful to them all for responses and suggestions.
The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 SI 2020/952
Ministry of Justice guidance on making wills using video conferencing — 25 July 2020
STEP briefing note: Execution of wills using video witnessing 25 July 2020
Witnessing Law Reform in the Coronavirus Era — Oxford Faculty of Law blog written by Brian Sloan, lecturer in law, University of Cambridge — 8 August 2020
Remote Witnessing of Wills: The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 — Charlotte John — 10 September 2020
The Law Commission’s 2017 wills project
This blog is written for general discussion of the law in force in England and Wales on 11 September 2020, and is not intended to be and should not be relied on for specific legal advice.
© Barbara Rich 2020
 https://www.legislation.gov.uk/pdfs/StatutoryInstrumentPractice_5th_Edition.pdf paragraph 3.9.1
 “6.2 The current legislation is likely to be interpreted to require the physical presence of the testator and the witnesses for observing the formalities of will-making and the Government has therefore decided to legislate to allow for video-witnessing for the purposes of sections 9(c) and 9(d) of the Wills Act 1837”
 See generally The use and misuse of guidance during the UK’s coronavirus lockdown, Tom Hickman September 4 2020 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3686857
 If a literal rather than a purposive interpretation of the Order is applied to letters of administration with the will annexed
 An Act made at a time when information technology was significantly less developed and ubiquitous than it is now. It became law only two years after the release of the film “You’ve Got Mail”, a romantic comedy based on sending and receiving email in an age when home email was a relative novelty and connection to the internet was made via a dial-up modem
 R (Christchurch Borough Council) v Secretary of State for Housing Communities and Local Government  EWHC 2126 (Admin) Sir Ross Cranston sitting as HCJ, at para 53