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Oral wills still a challenge

With the Law Commission and the Ministry of Justice looking into the possibility of whether all the criteria of the Wills Act can be met in the current state of pandemic, and some calling for oral wills to be made legal for those in hospital, our experts look at the issue at hand.

The Wills Act 1837 is very restrictive, it requires wills to be signed in the presence of two witnesses who can’t be beneficiaries. Both have to be in the presence of the testator whilst he/she signs and all three need to remain together while the witnesses sign.

As such, it’s clear to see why creation of a will at the current time can be tricky. The Law Commission has confirmed that virtual presence is not sufficient and presence must be physical. There’s some guidance around ensuring each person using their own pen, wearing gloves etc but it’s clear they must all be in the presence of each other.

At Napthens our lawyers have gone to some innovative ways of ensuring clients can have their wills witnessed as Partner, Kathryn Harwood explains: “With the law commission confirming physical presence was a must, we’ve had to think of some creative ways to get people together while maintaining safe social distances.

“Wills have been witnessed and made valid through windows – passing the will through the letterbox to be signed and witnessed, or using car bonnets as desks to again witness through a window.

“We have been taking instructions via numerous communication channels and part of our service is to make sure we are clear with clients as to what is required, and they have instructions on what to do.”

Currently, the only exceptions in the law are provided under the Soldiers and Sailors Act 1918 for armed servicemen and women while in active duty. This allows them to make an oral will, even if they are under the age of 18 (the Wills Act prescribes a will is only valid if the testator is over 18.)

Nicola Turner, Napthens’ specialist in contested wills and probate says: “With oral wills, there is a great deal of uncertainty and risk and they may be challenged in court because they are too easy to contest.

“It makes it very difficult because there may not even be a written record, or if there is, it may not be witnessed and signed by anyone and witnesses can be unreliable.

“When you add this to the fact that often NHS and careworkers are not allowed to act as witnesses by their employers, it paints a difficult picture for oral wills being used in the current circumstances.”

Given the continuing rise in wills, particularly home made wills,  being contested after a person dies and the concerns around capacity and abuse, it seems unlikely that oral wills are going to be introduced in the UK any time soon.

The only way of ensuring your wishes will be legally binding remains to make a will in writing and to ensure it is signed in compliance with the Wills Act 1837. Solutions to meeting this criteria in current circumstances can be found, but it has never been more important to take specialist advice.