A thread on some particular issues relating to the possible extension of “privileged” #wills (usually limited to certain soldiers, seaman etc) to address difficulties caused by #COVIDー19, currently being considered by @MoJGovUK following talks with @LawSociety. 1/16 #Succession

The problems caused by social distancing etc in fulfilling Wills Act, s 9 (re writing, signing & witnessing) have been well covered in eg blog posts by @BarbaraRich_law ( https://medium.com/@abarbararich/honora-jenkins-and-her-legacy-ac796c49a741) & @LottieJohn1 ( http://equitysdarling.co.uk/2020/03/27/will-making-and-coronavirus-can-wills-be-remotely-witnessed/) & in articles quoting @IanBondTEP. 2/16.

Extending the “privilege” is only 1 option being considered, & I’ve written elsewhere on @Law_Commission’s provisionally proposed (2017) dispensing power ( http://bit.ly/2xYquZG ), & the broader significance of witnessing ( http://bit.ly/2V6vqti ). But on the privilege... 3/16

The “privilege” currently allows soldiers, mariners etc to make an informal will (not complying with s 9) in certain circumstances ( https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/11). We needn’t worry about the current qualification details ( http://www.legislation.gov.uk/ukpga/Geo5/7-8/58) but there's an immediate problem. 4/16

To whom will the privilege extension apply? Everyone (for a limited time)? Those in hospital? The “vulnerable” under the regulations ( http://www.legislation.gov.uk/uksi/2020/350/regulation/1/made)? Those in an ICU? Those who test positive for COVID-19 (with all the issues on testing we’re currently experiencing)?5/16

Any limit on qualification will create some unfortunate cases, but if the extended “privilege” is too broad it’ll cut down the protection from fraud, undue influence, frivolous decisions etc usually provided by s 9. 6/16

Litigation will inevitably be generated given that the evidence of a “privileged” will may be shaky & self-interested, & if the “privilege” is widely available it may have few practical advantages over a dispensing power exercised by a court. 7/16

Statutory provisions on the “privilege” build & extend on something developed over centuries by the courts. Will it need to be codified if it’s widely available? Some details may need to be modified. 8/16

Eg someone under 18 can join the army & therefore make a “privileged” will: should that be removed for an extended privilege, or should s 9 be extended so that some U18s can make normal wills? 9/16

There are dangers for the public in extending the privilege. While a privileged will could be valid even if entirely oral, “animus testandi” (the intention to make provision taking effect on death) still needs to be present. This’ll probably cause litigation. 10/16

Writing will help to show animus testandi even if not formally required, but if a testator is tempted to use stockpiled toilet paper it might be thought that they lacked a sufficiently serious intention... 11/16

On the other hand, if people are *so* formal about the process that they actually comply with s 9, there’s a risk (unless this is addressed) that gifts to witnesses (not formally required for privileged wills) etc will be unwittingly made void: https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/15. 12/16

There’s also the fact that a “privileged” will is as valid as any other. It isn’t currently revoked simply because (eg) the testator leaves the army, & presumably the same would be true once “social distancing” etc is lifted or if the testator recovers from COVID-19. 13/16

Since the consequences of the will are essentially the same as if it complied with s 9, legal & financial advice will still be critical. These are preliminary thoughts: I plan to write a blog post if/when any legislation is published. Comments are welcome! 14/16

Unfortunately my forthcoming (due in May) edition of “Borkowski’s Law of Succession” ( @OUPLaw) won’t cover this specific issue, but I’ll write an online update if reform occurs. 15/16
http://bit.ly/2Efk2kO 

Finally, I realise that this is not the most important aspect of the current crisis. It’s very sad that so many are having to contemplate their mortality in the first place in this way. But will-making is important at all times. 16/16