ABSTRACT
The global pandemic caused by COVID-19 has brought new focus to human mortality. The virus concomitantly has reminded many people that they need to have a will or otherwise make plans for the transmission of their property at death. Yet stay-at-home orders and social distancing recommendations make it difficult or impossible to comply with the traditional rules for executing wills. Across most common law jurisdictions, the traditional requirements include two witnesses in the presence of the testator. Because of the practical difficulties of safely executing documents with assembled witnesses during the pandemic, however, many jurisdictions have implemented emergency measures that permit the remote witnessing of wills and other estate planning documents via audio-visual platforms like Zoom, Skype or FaceTime.
This Essay employs a dual Australia-United States perspective to investigate the purposes of traditional wills formalities and to suggest their continued vitality in the context of remotely witnessed or electronic wills. Although emergency measures adopted in both countries have made it easier to execute wills during the pandemic, these provisions will sunset in the near future. Increasing access to legal services generally and will-making specifically might argue in favor of making permanent the new rules adopted for will executions during the pandemic. Before embracing such a change, though, there needs to be more research.
This Essay suggests the importance of an empirical study into whether and how access to will-making increased during the pandemic. Were the people who availed themselves of new technologies for will execution during the pandemic those who would have made a will anyway? Was will-making behavior encouraged by the relaxing of traditional legal requirements for executing a will, or were testators driven by the practical (and real) fear of possible death during the pandemic? To what extent did the remote witnessing rules adequately provide for satisfactory testamentary capacity assessments (where necessary), and safeguard against undue influence and fraud, particularly in the case of vulnerable older persons and those who are socially isolated? Are wills executed during the pandemic under relaxed witnessing rules more likely than traditionally-executed wills to be subject to probate contests? The emergency measures adopted during the pandemic for will executions should not automatically become the new normal. Framing the discussion in both Australian and US perspectives highlights important questions about the purposes that traditional wills formalities are designed to serve and the continued need for formal safeguards that will increase the likelihood that an individual’s wishes will be respected after death.
Crawford, Bridget J and Purser, Kelly and Cockburn, Tina, Post-Pandemic Wills (October 8, 2020). University of Chicago Legal Forum, forthcoming,
First posted 2020-11-02 06:29:44
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