Wills formalities in the 21st century – Promoting testamentary intention in the face of societal change and advancements in technology

In our fifth QUT Global Law, Science and Technology seminar series for 2021, co-hosted by the Australian Centre for Health Law Research (ACHLR), Professor Bridget Crawford investigated the purposes of traditional will-making requirements and their continued vitality in the context of remotely witnessed wills.

Abstract

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 paper 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, in some jurisdictions these provisions may 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 permanent change, though, there needs to be more research to facilitate the development of evidence-based, workable rules for effective will-making in the twenty-first century.

Presentation

You can also watch the presentation at The QUTUBE, the official YouTube channel for Queensland University of Technology (QUT).

About Bridget Crawford

Bridget J. Crawford is a University Distinguished Professor and Professor of Law at Pace University in New York. She teaches courses in taxation and wills, trusts and estates, among others. Her scholarship focuses on issues of taxation, especially wealth transfer taxation; property law, especially wills and trusts; tax policy; and gender and the law. Professor Crawford is a member of the American Law Institute and the American College of Trust and Estate Counsel.

She is the former chair of the American Association of Law Schools’ Section on Women in Legal Education and its Section on Trusts & Estates, as well as the current chair of the Law and Society Association’s Trusts & Estates Collaborative Research Network. She is the author of over 100 articles and five books, including U.S. Feminist Judgments: Rewritten Opinions of the United States Supreme Court, published by Cambridge University Press in 2016.

Her next book, Menstruation Matters: Ending Law’s Silence on Periods, will be published by New York University Press in June 2022.

About the series

The QUT Global Law, Science and Technology Seminar Series aims to bring together national and international speakers who will explore the personal, societal and governance dimensions of solving real world problems which are influenced by, and through the interactions of science, technology and the law.

The series will host speakers who think about ‘technology’ and ‘science’ as broadly construed to refer to methods of framing or interacting with the world, and that enable the critical and imaginative questioning of the technical, science, environmental and health dimensions of law and life.