Will-Making in Difficult Circumstances: How to Comply With Formal Validity Requirements

David E Grant and Gabor Bognar consider the challenges of making a formally valid will in difficult circumstances, such as those which may arise from the current coronavirus (COVID-19) pandemic.

When one perceives a greater-than-usual risk of their near-term demise, the mind turns more readily to will-making. So it appears in the present pandemic, during which UK will-writers have reportedly experienced a substantial increase in client enquiries.

David E Grant and Gabor Bognar have written an article considering the challenges of making a formally valid will in difficult circumstances, such as those which may arise from the current coronavirus (COVID-19) pandemic.

Legislative requirements and the burden of proof

Their article explains the rigorous formality requirements of English law for the execution of a will pursuant to the Wills Act 1937, section 9 (“Section 9”). David and Gabor analyse the meaning of three of the key words and expressions in Section 9, namely “in writing”, “signed” and “in the presence of”, which may be particularly relevant when the execution of an intended will occurs in difficult or urgent circumstances.

Issues related to formal validity

The article goes on to consider whether, under Section 9, an English court might recognise the formal validity of any electronic document which purports to be a will, or of any document executed by electronic means.

Mitigating the risk of formal invalidity, if compliance with the Section 9 requirements is difficult or not possible

David and Gabor suggest that intended wills should be executed in strict compliance with Section 9 and that, if that is not possible, then the execution of the document should approximate the requirements of Section 9 to the fullest extent achievable.

Recognising the potential difficulty in achieving strict compliance, the article presents practical ideas for recording and preserving evidence concerning the execution of an intended will, in order to mitigate the risk that such a document might in the future be held by a court to be formally invalid.

You can read or download the full article here.

More information

For help and support concerning will-making issues such as those discussed by David and Gabor in this article, or in relation to litigation concerning wills, probate and other inheritance matters, please contact Matt Sale at +44 (0)20 7427 4910, or Peter Foad at +44 (0)20 7427 0807.

Covid-19, News, Private Client & Trusts during Covid-19 16 Apr, 2020