The Problems and Pitfalls of Oral Wills

The law in England and Wales that governs the making of valid Wills is based on the provisions of an Act of Parliament that dates back over 180 years.

The Wills Act 1837 sets out the conditions that must be met for a Will to be valid and – many argue – provide important protection for those who are vulnerable to undue influence when it comes to decisions about how their Estates should be distributed.

Key provisions of the Act require that the Will is in writing, that it is signed by the testator (the person making the Will) and that the signature is witnessed by two people. Absent these requirements a Will is likely to be found to be invalid.

The requirements of the Wills Act 1837 apply whether a Will is drafted by a Solicitor, completed on a “will pack” form or simply written at the kitchen table.

Although straightforward, a lack of compliance with these requirements has tripped up many a Will and resulted in an earlier Will being admitted to probate or, if there is no earlier Will, the intestacy rules applying.

With social distancing requirements in place due to Covid-19 and many people who are vulnerable taking steps to ensure they are not exposed to others, the rules around the making of valid Wills can present a challenge.

Now Gina Miller, the businesswoman who took the Government to Court over the prorogation of Parliament in 2019 has argued that advances in technology should enable oral Wills to be validly made. She has likened the Covid-19 pandemic as a situation akin to World War II when oral bedside Wills were permissible.

Many private client lawyers are strongly against any relaxation of the rules, believing that they provide important protection for anyone making a Will and for their family.

The loss of a loved one is difficult enough without uncertainty as to whether their last Will is valid. We see so many difficulties with handwritten Wills made by people without expert advice, the problems that would be caused by oral Wills would be even more pronounced. There is a real risk that people would not actually deal with their entire Estate, leading to a partial intestacy, or would fail to make a Will that provided for all the people they wished to remember.

In my view, if a person is too ill to make a Will they may well lack the capacity to make a Will at all. Covid-19 is known to create a low blood oxygen saturation as part of the pneumonia that it creates – that alone can cause confusion which may result in a lack of capacity.

Lawyers are still preparing valid, reliable Wills for clients, considering all of the options and advising them on tax efficient management of their affairs. There are ways in which social distancing can be maintained to ensure that Will instructions are taken, that the Will is signed and witnessed properly and that anyone making a Will can rest assured their Will is valid.

Oral Wills may be a step too far but the Law Commission and the Ministry of Justice are already looking at whether the requirements of the Wills Act should be relaxed in the immediate or long term.

This review began with the Law Commission’s “Making a Will” review in 2017 and has been brought to the fore by the current restrictions arising from the Covid-19 pandemic.

Practical changes could include relaxing the requirement for a Will to be witnessed by two witnesses, allowing a beneficiary to witness a Will (without invalidating any bequest to them) and the use of video conferencing to witness Wills or electronic signatures.

Wills deal with a person’s entire financial Estate, as well as providing a direction as to other important considerations such as funeral arrangements and guardians for children. It is vital that such important decisions are made and recorded with the greatest safeguards in place. Any relaxation of the current rules regime must maintain sufficient safeguards. Making it easier to make a Will will serve no purpose if it simply increases uncertainty about the reliability of that document and raises the prospect of challenges after death.

For advice on making a Will safely or to discuss concerns if you are worried that the Will of a loved one may not be valid please contact us: 0800 088 6004 or enquiries@wilsonbrowne.co.uk