Episode 10: The Will to Change the Law

John Worsey: You're listening to Life Solved from the University of Portsmouth. I'm John Worsey and this is the programme where I'm talking to brilliant researchers and scientists about the world-changing work they're doing.

John Worsey: This time, we're talking about changing UK law to meet the needs of a modern society. Our Will laws were established in very different times. So my guest thinks it's time for an update. She's been looking at the way countries handle Will making the world over. As part of this, a project to explore and update England's Victorian law of will-making is underway. But change is yet to be seen.

Juliet Brook: It was one of the first statutes that came into force after Victoria came onto the throne. We have got ourselves in a situation where the antiquity of our legislation is showing itself enormously.

John Worsey: In times of crisis, it's never more important to make sure people understand and are protected by fundamental laws. So what needs to be done to make it easier to make a valid will without creating other problems?

Juliet Brook: I can see they've got a tremendous power to respect people's intentions and wishes, but also a real danger. You end up seeing the estates spent in legal fees.

John Worsey: Let's meet Juliet Brook and hear her story.

John Worsey: Have you made a will? How certain are you that your intentions will be carried out just as you want after you die? It's a sombre subject, and in the UK, conversations about death and our final wishes can be taboo. Our laws are designed to create certainty. But what about all the people who haven't made wills or those who might have made a mistake? Forgotten to sign it, not had it witnessed or something else. Juliet Brook is a principal lecturer and associate head in the School of Law here at Portsmouth.

Juliet Brook: I used to be in practice as a solicitor, so I've always been – I am not an ivory tower academic that just sits there and wants to theorise. I've always looked at how this actually matters for someone.

John Worsey: Wills in England, Wales and Northern Ireland are covered mostly by the same law. This was drawn up in the Wills Act of 1837.

John Worsey: The Law Commission invited Juliet and other bodies to contribute to their consultation. The results of this would then be considered in a draft update to this act. I asked Juliet how reforming current will laws could make a real difference to our lives and the lives of those we leave behind. She told me where it falls short of meeting modern needs.

Juliet Brook: The Law Commission is currently looking into changing legislation in this area, which dates back to Victorian times. So you've got a piece of statute that's 180 years old. And so there's lots of aspects that they're looking at. In particular, there's a couple of things I'm looking at in particular. One is about questions of capacity to make a will.

John Worsey: Yep.

Juliet Brook: And then the other is about the formalities that are needed for making a will, because at the moment if you want to make a valid will, you've got to go through certain very rigid hoops. It's got to be in writing. It's got to be signed. You've got to sign it in the presence of witnesses. The witnesses have then got to sign it. And if you do that wrong, if you don't understand that, if you only have one witness and then they go away and then you get another witness, then it's not valid.

John Worsey: It doesn't count. Right.

Juliet Brook: And that's seen as a bit of a problem because more and more people are making wills at home, they're getting them off the Internet. They don't understand how much these laws are very rigid. And what people tend to want from the law is clarity.

John Worsey: Yeah.

Juliet Brook: At the moment we're so clear that lots of people fall foul of it.

John Worsey: What's more, the way estates pass if you don't make a valid will are failing non-standard families. Current laws of default inheritance just don't seem to cut it for contemporary life.

Juliet Brook: The whole idea is if you don't make a will, there's the laws of intestacy that govern how your property goes. And the laws of intestacy are based on the sort of the nuclear family. That if you married, it goes predominantly to your spouse and then issue if you've got a big enough estate. So your children, your grandchildren. And if you haven't got children, then your parents and your brothers and sisters and all those sorts of things. If you're cohabiting, if you're not married or in a civil partnership, you get nothing, no rights under intestacy. There's two million people cohabiting in this country and most of them don't realise that they've got no rights under intestacy. So a lot of the use of these dispensing powers in Australia has often been people who are not legally aware, don't know all the ins and outs of how to make a will. But they've got stepchildren that they want to inherit. As opposed to a nephew in America that they've never met before but happens to be the next of kin.

John Worsey: Rules around witnessing and signing are very specific to avoid the risk of fraud. But what about those people who make honest mistakes, say, in forgetting to sign their wills or have them witnessed correctly?

Juliet Brook: By the time you discover it's not valid, it is too late. The person who made the will is dead and you can't go back in time and make something. Now, what they've had since 1975 in some states in Australia is the power for the court to say, you've made a good effort, you tried and we know this is what you wanted to do. It's an intention-based thing that they look and you say, actually, you know what? You only have one witness. But yet this was clearly what you wanted, how you wanted your money to go. And so they can wave a magic wand and say, we'll accept this document. It's called a dispensing power.

John Worsey: Juliet's looked around the world for evidence of how other countries are using what's called dispensing powers to support the handling of wills and estates after death. She's had to think about some tragic events.

Juliet Brook: What the Law Commission is wanting to do is actually have these being far broader than pieces of paper that they could cover any documents of record. So, you know, text messages, all those sorts of things. And of course, when I started looking in this area, we just had the Grenfell fire tragedy. Now, people at the top of the Grenfell Tower were Skyping relatives. Now that Skype would be a document of record, wouldn't it? Now, I know lots of people in Grenfell didn't have much money, but if you were saying I want you to be the guardian of my children, that could be a really important thing that actually really mattered to, obviously, those people.

John Worsey: Yes.

Juliet Brook: So the ability to say, OK, this it's not a document, it's not been signed, but this clearly shows someone's intention is great. You then get the Australian case, there's a poor chap who was about to commit suicide. He typed out a text and said will, I want this to go. He didn't send the text. And on the one hand, lots of people saying, god, that unsent text, that means he was still thinking. And the courts said, well, the reason he didn't send it was he didn't want to alert his friends to the fact he was about to kill himself.

John Worsey: Yes.

John Worsey: In that Australian case, courts were able to fulfil the man's intentions because the dispensing power gives them the ability to be lenient. And the text message itself was discovered by someone who was disinherited by the message and so wasn't set to prosper from the change. I wanted to know a bit more about what sort of evidence different countries found acceptable.

Juliet Brook: What all of the countries are looking for is evidence of the testator's intention and the different models, the different statutory provisions in each country slightly affects what is necessary to show that intention. So in New Zealand, all they want is evidence that the document sets out the deceased's testamentary wishes. So what they want to have happen to their property when they die, which is a really wide statement. So anything that sets out how the deceased wanted his property to go, so even if it was a little sticky note or a phone call to the solicitor saying, could you make me a will in these terms, any of those sorts of things would be fine, because you can turn them into a document that sets out how they want their property to be disposed of. In contrast, most countries want evidence not just that the document sets out the deceased testamentary wishes, but also that they intended that thing to be their will. And so that's what Australia wants. So so you actually need to show that the deceased is, in effect, saying this is my will, not just this is what I want to have happen to my property. So lots of states in the United States say we will only admit a document under a dispensing power if that document has been signed because that is the evidence that they want that the deceased intended it to be their will. So some states in the United States still have a formality requirement for admitting a document under the dispensing powers because it still has to be signed. Australia has made it very clear that would go against the whole point of the dispensing powers because a dispensing power is meant to be able to come in and rescue a document that doesn't comply with the formalities. And if you put a formality there of saying it's got to be signed, you could end up thwarting what otherwise would be quite a will like looking document that sets out the testator's intentions, and the testator clearly wanted it to be their will, purely because they forgot to sign it or they didn't quite get round to signing it before they died. And there were some lovely Australian cases where the testator, unfortunately, just didn't quite manage to get pen to paper before they died. So Australia is very much trying to find a middle ground of, we want to give effect to the testator's intentions, we want to know the testator intended it to be their document. So that's what the courts are looking for. But we're not going to say there is any particular specific way that intent should be proved, as long as you can convince the court that this is what the testator wanted to be as their will, they wanted it to be their will.

John Worsey: So why does the UK law involve such strict principles for witnessing in the first place? Juliet explained the great deal of certainty you can get from having two witnesses present for the signatures. And these measures are also there to stop fraud and any undue influencing. If dispensing powers were introduced in England and Wales, there is a debate on how much flexibility could be allowed.

Juliet Brook: In England, we haven't had that debate because we haven't had the powers. No one's really had to really think about them. There's been very, very little written over here on how they should be shaped, it's generally been let's have them. Let's bring in some flexibility. There's always going to be a line. There's always going to be a boundary. Those can be someone who falls outside it.

John Worsey: Where that boundary line is vague, different interpretations can occur. This opens up an interesting debate about the ways will makers show intention.

Juliet Brook: It's seen as really important to give effect to people's intentions. But then there's been other cases where you've got, what I call, the prevaricating testator, the one who changes their mind. Do I want to give them two thousand pounds or three thousand pound? Oh, then I've had a row with him, he's not getting anything. Oh, actually, no. So there's a lovely Australian case with about a seven-page letter. And obviously, every-- she's written every single reason why she's disinheriting all of the people she's disinheriting. But then every time she then goes back and crosses it out and the court said, well, we don't know that this was her final wishes and it was a split judgement. One judge said actually we do. It was always her final wishes, she just kept changing her mind. And the other two judges were saying, oh, no, we're not sure if this clearly represents her intention.

John Worsey: So how can you identify someone's intention when you can't just ask them? Some answers can be found in a little used area of wills known as privileged wills.

Juliet Brook: We already have a form of will that serving members of the forces can make. It's called a privilege will, and these can be completely oral because back in the days of people who go to say they couldn't read, they couldn't write. And so actually whatever they said, they were never brought into these formalities in the first place. And we, therefore, got a whole load of case law on these sorts of statements by mariners' at sea, sailors, soldiers, all the rest of it. There was the First World War One, where a chap said to his fiance, if I stop a bullet, everything of mine will be yours. And they said, Yeah, that's great. That was a statement of what he wanted to have happen. And then there was a bartender who said in a casual conversation, if anything happens to me, my sister will get everything. And they said, no, that wasn't a statement of what he wanted to have happen, that was a statement of what he believed would already happen. And so that wasn't a will and that's where it starts to then get really quite worrying. And it's where it then falls into my other area of research, which is the contentious probate when families start vowing. That there is the danger that you open up the potential and law commission themselves have said of disgruntled relatives trawling through emails in the vague hope that they can find something.

John Worsey: So would the introduction of these powers just lead to more litigation or court disputes over wills? Some fear this may be the case.

Juliet Brook: I can see they've got a tremendous power to respect people's intentions and wishes, but also a real danger of more litigation at a time that people really don't want to have. You end up seeing the estates spent in legal fees. See at the moment, you already have some court cases where people are desperately trying to show that a will that looks OK is not valid. You will never get rid of court cases. It would change the litigation instead of trying to prove that the will is invalid because the witnesses were at the same time, if you had a document that said this is the will and it's signed and it looks OK, there will be no point trying to challenge it. It should cut litigation and help that. It's making sure that by doing that, by helping that group, we don't end up creating a different set of litigation.

John Worsey: Recent times have seen a surge of people considering how their estates and affairs will be passed on after they die. In spite of social distancing and even with technology at our hands, English law does not allow video witnessing or electronic signing. The issue came into sharp focus after the global coronavirus pandemic caused many to make wills in 2020. But getting documents made and signed in England was ever more difficult. Panicking willmakers resorted to socially distanced, witnessing over garden fences or even leaning over their car bonnets in the street. Some solicitors even took a chance on video witnessing in spite of the law. Juliet explained how other countries introduced measures to tackle the problem during the epidemic.

Juliet Brook: In effect, what lots of them have brought in is not a dispensing power. Lots of the countries that have brought these in have actually already got a dispensing power. What they have expressly permitted is the ability to video witness a will. I talked last time about the case law that you can be a witness if you are not in the same room, but can have a direct line of sight through glass. But if that is not possible, if you can't even get the direct line of sight through glass, what we all can do now, obviously, is we are doing at the moment is have a video conference. But there is no case law that confirms that is allowed in England. And lots of other countries around the world equally haven't got that and haven't needed to do that because they thought, well, why do a video if you could just have, you know, we don't need to have a specific witness. You just go and find a person. This coronavirus has suddenly put us in that situation where we realise it's not always possible to find a spare person to be your witness. New Zealand have come up with the very nifty titled Epidemic Preparedness (Wills Act 2007 – signing and Witnessing of Wills) Immediate Modification Order 2020. That has expressly allowed the wills to be signed-- to be witnessed by and signed by video link. And Queensland and Ontario and lots of states in the USA have also done similar. Oh and then the Scottish Law Commission has also said that video witnessing is fine. What's interesting about that is they have all found ways to formally recognise a will as being valid when it has not been created in the present, with the two witnesses being present, but they are there by video link. A lot of the countries that have done this have got dispensing powers as well. They have already crossed that Rubicon of we have these formalities, but sometimes people don't get it right. We've got a situation where I know the Law Society is still talking to the Ministry of Justice. We're paying the price now for not having kept the law vaguely up to date with changes in technology, with advances. And it's a shame because video witnessing, electronic signatures and so on have been looked at in other contexts.

John Worsey: Juliet thinks that we should consider updating our wills at every life stage or change, from births to cohabiting, marriages, divorces and house moves. She hopes that if anything good comes out of the coronavirus pandemic, it will be a general increase in this proactive behaviour, as well as more people realising the importance of having a will. It might seem obvious, but with busy lives, it's easy for many people to push this task to the bottom of the to-do list. But it's not simply a case of making it easier to express your wishes, as Juliet explained. If dispensing powers are to be introduced, caution is still needed so that these changes to the law don't create new problems.

Juliet Brook: We have these things and I think the majority of respondents think there is a lot of scope for bringing in this ability to admit less formal documents. But we're going to need to make sure that the legislation is clear enough that people can have confidence that the documents that are admitted to probate and then given effect are genuinely reflecting, as much as the court can ever say with hindsight, are genuinely reflecting what that testator wanted to have happen.

John Worsey: It seems to me there are more than a few layers to the options the Law Commission faces when proposing reform to parliament. For starters, dispensing powers seem to allow more scope to reflect the actual intentions of more people without a will. But there are also questions about whether the process of creating a will could be made easier in the first place with the use of electronic documents, video witnessing and more. Juliet says there isn't one solution to fix all ills, and the key issue to get right is where to draw the line so that a will can actually reflect what the testator wanted at the time of their death. But at this point, we have been working with wills that are inadequate for our times.

Juliet Brook: Actually, probably in an ideal world, they would be changing the intestacy law so that cohabitees could actually inherit. It's an area of the law that has-- the law commissioner always says it's Victorian. It is Victorian. It's one of the first statutes that came into force after Victoria came onto the throne. We have got ourselves in a situation where the antiquity of our legislation is showing itself enormously. At the end of July, the Ministry of Justice announced that provisions would be brought into force in September to allow for video witnessing of wills. These provisions would be backdated to take effect to start taking effect on the 31 January 2020. And they've said that they will be in force for two years or for as long as they are considered necessary. They will have covered all of the coronavirus period from the end of January onwards, and they will carry on for as long as we need to. The video witnessing legislation will allow people to create a will where the witnesses are not physically in the same room or have direct line of sight, but they are watching the will being signed over a live video link. They are not changing the general rules for making a will, it still needs to be a will signed by the testator in the presence of two witnesses. They are just changing that presence requirement that the presence can be met by having a live video link. The will document still needs to be a single document that is signed by the testator and then those two witnesses, so there will be a physical process. The problem is that this is quite a restrictive method of video witnessing. And we have got a position where the legislation has only been brought into force in September when the worst of the crisis (hopefully) was back in March, April. And so testator's will have been -- if they could not physically be in the same place as the witnesses, they might have made that leap of faith of going for video witnessing in the hope that it would be found to be valid, but might now find out that the will that they thought was valid it does not fit within the requirements of the new video witnessing regulations. We've got a strange situation where the retrospective relaxation might not be as big a relaxation as people were hoping or needing. And this is where the fact that we have got no dispensing power puts us in a very difficult situation because if you have not met the requirements, the will is not valid. Full stop, end of story. All of my concerns about dispensing powers are where it's a bit ambiguous whether the testator really wanted to make a will in those terms. In contrast, if we had a dispensing power, this would be exactly the situation where it could work really well, where you have got a video recording that shows that demonstrates clearly that the testator intended this to be their document. The dispensing power, if we had it, would be able to rescue those sorts of documents.

John Worsey: It seems to me that any reforms to will legislation looks set to be a balance between certainty and flexibility. Right now, if you have a valid will in England, you can die with relative certainty that your wishes will be reflected. But if you don't have a valid will or if you change your mind and don't officially record it, your intended inheritors might miss out. At times of crisis, it seems especially important to look again at our wills to meet the needs of contemporary society. But as Juliet makes clear, doing this in a way that doesn't create new problems is the challenge. That's it for this series of Life Solved. We'll be back again soon, though. I'll be bringing you more world-changing research from here in Portsmouth. You can go back and listen to the rest of our episodes any time and follow our work at port.ac.uk/research. Our new magazine, Solve, follows University of Portsmouth research when it's put into practice. It's full of news and stories on our world-leading advances and the changes these are making to lives and futures across the world. It's available at port.ac.uk/Solve. And please tell us what you think via social media, you can get in touch using the hashtag life solved or maybe just share the big idea with a friend. I'm John Worsey. Thanks for listening.