Two is Too Many…

16th April, 2020

Making Wills has assumed a new importance in the national consciousness currently.

English Law has always been clear that a Will is one of the most serious documents the Testator will sign, disposing of his entire life’s work with that one document.  Our ancestors recognised the seriousness of the Will and also the fact that it would be most likely shown to others only after the Testator had died.

Thus two witnesses were required to the Testator’s signature to prove that it was valid and minimise allegations of fraud, coercion or dishonesty.  These are sensible and practical steps for normal times.

However, the Victorian Statute which governs the making of Wills and quite sensibly prescribes two witnesses for signatures generally has a specific exemption for times of crisis.  This reflected a 17^th century provision that a soldier within a besieged town could make a Will which although it had to be in writing did not require his signature nor did it require witnesses.

This was known as a Privileged Will because of the extreme circumstances in which it was made and the dispensation with ordinary safeguards.

At the end of World War I Parliament extended the provision for soldiers in besieged towns to all servicemen on active service.  This allowed soldiers at the front to make Wills which did not require signature or witnesses although obviously both were desirable from a evidential perspective to ensure that what was produced was indeed the correct Will for the correct Testator.

It is a good example of English Law reacting to a crisis.  The Law relaxing what are otherwise quite acceptable safeguards to avoid the Courts being overwhelmed by cases about Wills and whether a Will was indeed the Will of the Testator and if so whether it was procured by coercion or fraud.

Social distancing means that getting two witnesses – who have to be independent and not benefit under the Will at all – to witness a Testator’s signature by being in the same room as him is contrary to Government guidance.

It would be sensible to consider extending the notion of Privileged Wills to the nation when it is in lockdown.  This would ensure that people were free to record their testamentary intentions without having to put the lives of others at risk.

It will be a simple matter to extend the privilege afforded to our Armed Services to the population at large at this difficult time.  Parliament has previously recognised that danger can take different forms and included Merchant Seamen at sea within the Privileged Wills group along with servicemen on active service.

It is time for this to be extended to the general population for the lockdown period.

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