Wills & Succession

This section includes literature on trusts and estate planning.

Biemans, JWA, ‘Will Requirements for Last Wills Remain as They Are? The “Physical Presence Requirement” of Witnesses and Notaries in the Light of the COVID-19 Interim Measures and the EU Freedom of (Notarial) Services’ (2021) 17(3) Utrecht Law Review 51–64
Abstract: The COVID-19-crisis has exposed the shortcomings of formal requirements for legal acts which involve the physical presence of others. This is in particular true with regard to last wills which require the physical presence of a notary and/or witnesses, who have to authenticate and/or attest to the last will of the testator. In such cases, the physical presence requirement imposes an outright obstruction to passing a last will in times of COVID-19. Western countries have responded differently to COVID-19. In the civil-law jurisdictions where only notarial wills are offered, such as the Netherlands, the government has introduced interim measures allowing the testator (and witnesses, if required) to appear before the notary by audio-video technology, leading to authorized remote notarization and remote witnessing. The same has been done in common law jurisdictions where only witnessed wills are offered, including Australia, New Zealand and some states in the United States with regard to witnessing. The first part of this paper researches the different types of last wills and seeks to explain why countries have responded differently in this respect to COVID-19. The second part discusses the different solutions available and argues that solutions introducing audio-video technology as an alternative for physical presence are more favourable than other solutions. Remote authentication and remote witnessing leaves intact the existing will-types of the particular jurisdiction as they are, modernizing the presence requirement of the notary and/or the witnesses, while at the same time preserving legal certainty by anchoring these possibilities in legislation. Introducing audio-video technology in making last wills seems a logical step forward in the 21st century. Building on the two previous parts, the third part investigates a more fundamental issue relating to the physical presence requirement for notarial wills from a European Union free movement of services perspective. Discussing ECJ case law and two applicable directives, it shows that Member States are allowed to restrict the freedom of establishment of notaries and freedom to provide notarial services. These restrictions often lead to a domestic monopoly of notaries, where notaries appointed in the Member State offer exclusively notarial services under the legislation of that Member State, with the requirement that these notaries can only be established in and only offer their services that Member State. Combined with the physical presence requirement, these restrictions to the freedom of establishment and the freedom of services effectively force a testator desiring to make its last will before a notary to travel to the Member State of that notary. Even without COVID-19, it is the question whether this physical presence requirement unnecessarily restricts the freedom of services under art. 56 TFEU, as it deprives the notary and the testator of a rapid and direct technique of passing notarial wills. The possibility of remote authentication under interim legislation raises the question whether the physical presence requirement is objectively justified and proportionate to restrict the freedom of services.

Brankov, Amelia K and Sherri Cohen, ‘Selling and Consigning Artwork in The Era of COVID-19: Legal Tips for Collectors to Keep in Mind’ (2021) 160(4) Trusts & Estates 54–56
Abstract: Auction houses and other art vendors have adjusted their business practices to address some of the logistical hurdles caused by the COVID-19 virus. Here’s how the auction houses have adjusted their practices to facilitate the consignment process and sales. We also provide some legal tips for collectors to keep in mind when purchasing artworks during COVID-19.

Brown, Lucinda and Alexander Morgan, ‘A Welcome Update?’ 217(October) Trusts and Estates Law & Tax Journal 4–11
Abstract: Comments on proposed temporary legislation to allow wills to be witnessed by video conference without witnesses’ physical presence. Discusses best practice for executing such a will, and for solicitors to show compliance with their obligations. Examines disputes which may arise about such wills.

Browne, Darryl, ‘Elder Law and Succession’ (2020) 66 LSJ: Law Society of NSW Journal 99–100
Abstract: Home-made administration of home-made will - allegation of testamentary fraud - bank acts to prevent elder abuse - Australian Financial Complaints Authority is constitutionally valid - COVID-19 affected decision - leave to retract renunciation - apportionment of dividend.

Đurđić-Milošević, Tamara, ‘Testamentary Formalities in the Time of Pandemic’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 422–443
Abstract: The formalism in testamentary law is a result of the need to protect the freedom of testamentary disposition and the authenticity of the last will of the testator. Proposed formalities are supposed to serve multiple purposes in testamentary law: evidentiary, cautionary and protective. Having in mind the level of modern society development and technologies, as well as the new challenges we face with today (such as pandemics, natural disasters, etc.), the question arises: whether the prescribed formalities in testamentary disposition are justified in terms of purposes they are suposed to serve? Modern testamentary law is characterized by the trend of liberalization of testamentary forms, mitigation of formalities, abolition of certain obsolete forms of testament, but also introduction of new forms dictated by new social and economic, political circumstances and new requirements of legal trade mortis causa. The experience with the Covid pandemic confirmed the importance of these issues. The state of the pandemic indisputably restricts the freedom of testation in several directions: limited contacts prevent the presence of notaries or judges as representatives of public authorities as a mandatory element of form in public testamentary forms, and the possibility of their composition; it is impossible or difficult to ensure the presence of testamentary witnesses in allographic testament and thus difficult to implement the principle of unitu actu as a key feature of the testamentary form; finally, illiterate people and people with disabilities remain deprived of the opportunity to exercise their constitutionally guaranteed freedom of testing due to being unable to make an holographic legacy, as their sole option available within the extraordinary circumstances of a pandemic, due to above mentioned restrictions. As the basic purpose of the testamentary right is to enable a testamentarily capable person to manifest his last will in whatever circumstances he finds himself, extraordinary circumstances during a pandemic indisputably restrict the freedom of testing. The new pandemic circumstances have prompted the legal public to think in the following directions: whether there is a need to introduce new forms of testament during a pandemic (as was done in Spain, which regulated testament during a pandemic); should certain elements of the form of the will be modernized (e.g. allow the possibility of the participation of the witness of the will in the process of making the will online via audio-video link) ?; and finally, should the door be opened to the digitalization of the will and the possibility of compiling an electronic will and mark the beginning of a new era of testamentary law? These and related issues are the subject of analysis in this paper, and will be viewed through the prism of comparative legislation, with special emphasis on the legislation of the countries of the Roman legal tradition that precedes the form of bequest during a pandemic. In order to determine the guidelines for further development of testamentary law and its rationalization, the situation in common law countries will be pointed out, and some examples from their case law will be analyzed, considering that a significant step towards digitalization of testamentary law has already been made in these legal systems. Based on this comparative analysis, which implies the application of primarily comparative law and dogmatic methods, as well as axiological through a new approach to the testamentary form, we try to determine whether testamentary forms and formalities are harmonized with the needs of modern society, especially in pandemics. Finally, at the end of the paper, the author tries to give proposed solutions in the direction of reforming the testamentary formalities de lege ferenda, trying to establish a balance between legal certainty and freedom of testing.

Horton, David and Reid K Weisbord, ‘COVID-19 and Formal Wills’ (2020) 73(May) Stanford Law Review Online 18-27
Abstract: Most Americans do not have a will. The reasons are easy to understand. Thinking about death is unpleasant, and hiring a lawyer is expensive. However, as COVID-19 sweeps through the country, some Americans urgently need an estate plan. Unfortunately, U.S. law makes it difficult to create a will during crises like these. Indeed, twenty-five states and the District of Columbia recognize only one type of will: a ‘formal’ will executed in compliance with the Wills Act. Under this ancient statute, wills must be written, signed by the testator, and also witnessed by two people who were present at the same time. As journalists and lawyers are recognizing, the Wills Act’s insistence that the parties physically occupy the same space creates unprecedented roadblocks during a time of widespread quarantine and shelter-in-place orders. Yet the pandemic has also arrived during a period in which wills law is in flux. In the last two decades, a handful of jurisdictions have begun excusing harmless errors during the will-execution process. And, in an even sharper departure from the Wills Act’s stuffy norms, four states have recently authorized electronic wills. This Essay argues that COVID-19 vividly highlights the shortcomings of formal wills. Indeed, the outbreak has exposed the main problem with the Wills Act: it makes will-making inaccessible. As a result, we urge lawmakers in states that cling to the statute to liberalize the requirements for creating a will. Our argument proceeds in three Parts. Part I details the social value of will-making. Part II describes the Wills Act and explains why it creates formidable obstacles for testators who are caught in the jaws of a pandemic. Part III explores four ways in which policymakers can solve this problem: by permitting holographic wills, adopting the harmless error doctrine, enacting electronic will legislation, or temporarily suspending certain elements of the Wills Act during public health emergencies.

Jackson, Kym, ‘Law in the Time of COVID-19: Changes in Succession and Probate Practice’ (2020) 42(6) Bulletin (Law Society of South Australia) 16–17
Abstract: Before the earliest most tentative warnings had sounded in relation to the COVID-19 pandemic, I had taken the pre-emptive precaution of moving to a regional area with my family. This proved to be sound and - at a personal level at least - the worst consequences of the virus were avoided. But complete avoidance was to remain elusive: legal services have been affected (though certainly not as much as some other businesses), as well as the way we deliver those services.

Jacobs, Johann, ‘A COVID-19 Health Check for the Wills Act: Law of Succession’ (2020) 20(6) Without Prejudice 38–40
Abstract: Every aspect of life has been affected by COVID-19. Estate planning is no exception, especially the execution of wills. The stark reminder of mortality, coupled with the extra free time at most individuals’ disposal during lockdowns has resulted in more enquiries directed to fiduciary practitioners. Would-be testators and practitioners were, however, confronted with major practical obstacles in giving effect to these instructions.

Kirkpatrick, Andrew, ‘Updated Guidance on the Execution of Wills During the Covid-19 Crisis’ 233(Spring) Writ 16
Abstract: Summarises the guidance issued by the Law Society of Northern Ireland’s Non Contentious Business Committee on the execution of wills during the COVID-19 lockdown period where face to face meetings are difficult.

Popovic-Montag, Suzana and Nick Esterbauer, ‘Maintaining a Wills and Estates Practice During COVID-19’ [2020] (April) Toronto Law Journal 1–4
Abstract: As a result of COVID-19, lawyers across the country have had to temporarily alter their practices. In a profession where in-person meetings are expected by clients and/or necessary to see to the proper execution of legal documents, social distancing has forced the legal system to rapidly adapt to allow us to continue serving our clients in these unprecedented circumstances. This has posed a challenge for members of the Estates Bar in particular, as client meetings, will signings, hearings, and mediations have all been affected. During this time, however, it remains crucial that estate lawyers continue to help clients in creating or amending estate plans and in moving estate litigation matters forward. Familiarizing ourselves with the tools that have recently become available can be of great assistance in this regard.

Purser, Kelly et al, ‘End of Life Decision-Making, Advance Care Planning and Estate Planning During a Pandemic’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

Purser, Kelly, Tina Cockburn and Bridget J Crawford, ‘Wills Formalities beyond COVID-19: An Australian–United States Perspective’ [2020] (5) UNSW Law Journal Forum 1–14
Abstract: COVID-19 has brought a new focus to human mortality and a person’s need to prepare for the transmission of their property at death. However, stay-at-home orders and social distancing requirements have made safely executing wills practically difficult. Using a comparative Australian-United States perspective, Dr Kelly Purser, Associate Professor Tina Cockburn and Professor Bridget J Crawford investigate the purposes of traditional wills formalities, suggest their continued vitality in the context of remotely witnessed or electronic wills, and critically discuss the emergency measures adopted in both countries and the arguments for and against making these measures permanent.

Smyth, Christine, ‘What’s New in Succession Law: COVID Conundrums: Consideration Needed on the Question of “Presence”’ (2020) 40(4) Proctor 44–45
Abstract: It seems that no matter how fast I type, I can’t match the speed with which things are changing as a result of COVID-19. At the time of writing, succession lawyers are grappling with how we might address the issues thrown up where there is a legislative requirement for witnessing and for it to occur ‘in the presence of’, particularly with respect to affidavits, wills, powers of attorney, advance health directives and superannuation binding death benefit nominations. :

Stilinović, Marko, ‘Testamentary Dispositions in the Context of Global Pandemic’ (2021) 5(EU 2021 – The Future of the EU in and After the Pandemic) EU and Comparative Law Issues and Challenges Series (ECLIC) 501–525
Jurisdiction: EU and Croatia
Abstract: The outbreak and the rapid spread of global COVID-19 pandemic have put significant strains on the institutions. The need to adapt to ‘new normal’ and contain the rapid spread of disease, while maintaining a functional society, resulted with introduction of numerous new legal mechanisms and adaptation of the existing ones. However, it seems that one area of law remains on the fringes: the regulation of wills. Even before the start of the pandemic many authors often pointed to the fact that the current legal framework does not follow modern technological developments, but no significant attempts were made to overhaul the inheritance law. Also, once the pandemic started in its full, there were no references to introduction of extraordinary mechanisms or new legal solutions to overcome the potential difficulties in forming wills. Comparative analysis yielded no better results: although some countries (such as Austria) recently completely overhauled their regulation of inheritance law, it seems that no attempts were made to introduce new types of wills or new methods of drafting wills into their regulations. Furthermore, following the spread of the pandemic, increasing number of potential testators find themselves unable to use traditional methods of drafting wills as they, or the authorized persons tasked with assistance and creation of wills, remain isolated from one another due to various reasons (lock-downs, isolation in case of experiencing symptoms, etc.). Having in mind these circumstances, it is necessary to ascertain whether there is a genuine need to introduce new types of wills into existing legal framework, or to adapt the current legal framework by facilitating the communication between citizens and the institutions. Also, it is necessary to analyze whether the interpretation of the existing legal framework enables the introduction of certain facilitating mechanisms. In order to reach these goals and clarify the possibilities within the current legal framework, interpretative and comparative method are used. :

Załucki, Mariusz, Solving the “Problem” of Wills Formalities in the Modern Post-Pandemic Society: Can the Endless Discussion Conclude? [2020] (87) Studia Iuridica 526–552
Abstract: The last will as an instrument of succession law is one of the means of disposing property upon death. Around the world particular legal regulations of American, Australian, European or other countries generally provide for different specific formal requirements for the valid preparation of will. The inappropriateness of this kind of solutions was shown, among others, during the COVID-19 pandemic, when the need for making last wills has increased significantly and has rarely been executed in a manner consistent with the formalities. Reflecting the intent of a testator, often expressed informally, seems to be a more important value of the law of succession than respecting the formalities. This has already been noticed in some countries, especially in common law jurisdictions in Australia and America, where solutions based on substantial compliance doctrine or its variations, contrary to the Pan-European strict compliance standard, were adopted. These solutions however, do not take into consideration plenty of circumstances that may occur in the testation practice and are indifferent to new possible ways of making wills. Meanwhile, the range of mechanisms and proposals for statutory changes in the area of wills formalities is constantly growing. However, there are no proposals to cover all possible legislations in this area, as regards Anglo-American, European or other countries. In the meantime, such a solution seems possible and desirable in order to reconcile the doctrines of substantial compliance and strict compliance. This proposal is the subject of this study.

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