Where there’s a will; there’s a way (Pt 2)

In brief

• Is the government’s proposed emergency legislation sanctioning video witnessing of wills a lost opportunity?

It is common knowledge that self-isolating and vulnerable people are encountering considerable practical difficulties in making their wills during this pandemic. The chief obstacle being that to be valid, a will must be signed in the presence of two witnesses.

In Part 1 I explained that while s 9 of the Wills Act 1837 (WA 1837) insists on strict conformity with its prescriptive formalities for a will’s validity, the common law has consistently applied a broad construction to its wording.This latitude has been applied to terms such as ‘writing’, ‘signed’ and ‘presence’ to accommodate social and technical developments; subject to the caveat that any innovation must not detract from 9’s legislative objective of protecting testators from fraud. However, in the context of the coronavirus, it is widely believed that a testamentary witness’s ‘presence’