Wills Formalities in a Post-Pandemic World: A Research Agenda

The COVID-19 global pandemic has brought new focus to human mortality. The virus has reminded many people that they need to have a valid will or otherwise make plans for the effective transmission of their property on death. Yet stay-at-home orders and social distancing recommendations make it difficult or impossible to comply with the traditional rules for validly executing wills. Across most common law jurisdictions, the traditional requirements call for two witnesses in the physical presence of the testator. Because of the practical difficulties of safely executing documents during the pandemic with witnesses assembled in physical proximity, many jurisdictions internationally 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 Australian-United States perspective to investigate the purposes of traditional will-making requirements and to suggest their continued vitality in the context of remotely witnessed wills. Although emergency measures adopted in both countries arguably have made it easier to execute wills during the pandemic, these provisions will, for the most part, sunset in the near future. The desirability of increasing access to legal services generally, and will-making specifically, might argue in favor of making permanent the pandemic-era rules for will executions. Before embracing a permanent change, though, there needs to be more research. This essay proposes a research agenda comprised of four future empirical studies of pandemic and post-pandemic-era will-making. These studies aim to identify and address any problems with the remote witnessing of testamentary documents. The results of these and other studies can facilitate the development of evidence-based, workable rules for effective will-making in the twenty-first century.