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Can I make a valid Will during lockdown?
In recent weeks, a surge in the number of people wanting to make Wills and to get their affairs in order has been reported. This is understandable given the unprecedented situation we find ourselves in. However, with social distancing measures in place, adhering to the formal process and requirements for making a Will has become a little more challenging. So, how can a valid Will be made during such unusual and challenging times?
What are the formal requirements for a valid Will?
Section 9 of the Wills Act 1837 provides that:
‘No Will shall be valid unless –
(a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.’
In summary, you should sign your Will in the presence of two independent witnesses, and your witnesses must also sign it in your presence.
The witnesses can’t come in my house during the lockdown, so what can I do?
- You could sign the Will whilst your two independent witnesses watch you sign through a window of your house. The Will could then be passed through the letterbox for the witnesses to sign and complete their ‘witness sections’; or
- You could sign the Will whilst your two independent witnesses watch from a safe distance (for example, over a garden fence or wall, or from a separate room). The Will could then be passed to your witnesses to sign and complete their sections; or
- You could sign the Will whilst sat in your car, whilst your two independent witnesses watch you sign through the window. Again, the Will could then be passed to your witnesses to sign and complete their sections.
The key point here is that your witnesses must have a clear line of sight when you sign your Will. For guidance on what ‘line of sight’ means, we must revert back to the case of Casson v Dade …yes, 1781!
Here, a Will was found to be valid where the testatrix signed her Will from the comfort of her carriage, with two witnesses watching from a window.
This precedent was also called upon in Re Clarke , a case concerning the execution of Lasting Powers of Attorney. Senior Judge Lush held that where the person signing (Donor) was in one room, and the witness in another, separated only by a glass door, the witness was still in the line of sight of the Donor.
Your witnesses should be able to say, “I saw the testator/testatrix sign this Will, and I signed it after him/her and in their presence”.
Are there any other options?
Clearly none of the scenarios set out above are ideal – especially as passing documents from one person to another carries with it risk – so you could instead instruct someone to sign your Will on your behalf, whilst you watch them and one other witness sign it through the window.
This option, however, brings with it its own risks – in that if you have never signed the Will personally then, in the event of your death, the content of the Will could be challenged – and so it should be seen as a last resort, or something that is only undertaken with professional assistance. For example, your Solicitor and another witness (possibly another representative from the law firm) could read the Will over to you before signing it on your behalf whilst you watch.
Who can be a witness?
As outlined above, the witnesses should always be independent – so not someone who could inherit under the Will; nor a spouse or civil partner of someone who might inherit.
Section 15 of the Wills Act 1837 provides that if someone who is to benefit from your Will signs as a witness, or their spouse / civil partner signs, they will lose their gift under the Will.
In the examples outlined above, you could call upon friends or neighbours to assist in the witnessing of your Will. Your witnesses do not need to read the contents of your Will but do need to know that it is your Will you are signing, and then they must witness you sign it, and then sign to confirm that they saw you sign it.
Can someone witness via a video call?
No! The Law Commission has previously considered the electronic execution of documents and determined that this can create evidential issues, and so is not possible for a Will.
This all seems a little old fashioned and restrictive!
The Law Society and Ministry of Justice are in discussions with a view to relaxing the formalities for making a valid Will, particularly as a result of the Covid-19 pandemic. For now, the formalities outlined above must be adhered to. If you don’t adhere to them, the Will is likely to be invalid, or at best will be open to challenge in the event of your death. This could have catastrophic consequences for you and your family, potentially resulting in a Will dispute, or your estate ending up in the wrong hands or lost to future care costs, for example.
Other requirements for making a Will
The person making the Will must have “testamentary capacity”, must knowingly approve the content of their Will, and must make the Will free of any undue influence. Again, if these are not satisfied, the Will could be open to challenge or deemed invalid.
‘Homemade Wills’ might seem like a sensible solution given the lockdown situation. However, we would always encourage people to seek specialist, professional advice when making a Will. With modern family structures and a rise in Will challenges, homemade Wills could expose your family to costly litigation if your Will is not prepared and executed properly.
Despite the social distancing restrictions, we can still give advice over the telephone, or via a video call (Skype, Facetime, Whatsapp etc). Solicitors have also been granted ‘Keyworker’ status by the Government when they are assisting in the execution of a Will. This means that we can complete the process for you from start to finish, as we would normally.
The Covid-19 pandemic has certainly made the signing and witnessing of Wills more challenging. However, if the right steps are followed, it’s still possible to validly execute your Will whilst in lockdown. Now more than ever though, it’s important to adhere to the formal requirements for executing Wills. By following the steps outlined above, you can protect yourself and your family from problems further down the line.