With the extension of social distancing measures until at least 7 May 2020 and the increasing number of people seeking to make a Will, there have been calls for the relaxation of the formalities for executing and witnessing Wills. However, the government has indicated that there are no immediate plans to reform the requirements imposed under section 9 of the Wills Act 1837 in response to the COVID-19 outbreak.
Section 9 of the Wills Act 1837 states that, in order for it to be valid, a Will must be signed by the person making the Will (testator), in the presence of two independent witnesses, who must then also sign the document in their presence. Unfortunately, a signature cannot be witnessed via a video call which, of course, poses an issue with social distancing measures in place.
The government has decided not to relax the witnessing formalities as the safeguards detailed above were put into place to protect the elderly and vulnerable. Maintaining the current stance helps ensure that the testator is not coerced into signing the Will and that his/her signature is not forged by people who may stand to benefit under the terms of the Will. However, the government did indicate that they will be further considering allowing documents to be witnessed via video conferencing in the near future, so watch this space!
How can we help?
Adhering to social distancing measures, there remains a range of options that we have available to enable the safe and legal signing of your Will in the present circumstances. These include:
- We can post the Will to you so that you can sign it at home. You will need to find two independent witnesses, i.e. not someone who could inherit under your Will or their spouse/civil partner, to witness you signing the Will. Adhering to social distancing measures, you could, for example, sign the Will though a closed window with you remaining inside the house while your witnesses stand outside. If you have a garden, you could also sign the Will while stood in your doorway, while your witnesses stand in your garden or even sign it with your neighbours over the garden fence. Provided that you and your witnesses can see each other sign the Will, there are numerous possibilities.
- You can drive to our office and remain in the car while you sign your Will and two members of our staff will stand next to your car and act as your witnesses. You can sign the document yourself or, in accordance with section 9 of the Wills Act, somebody else can sign the Will on your behalf, provided that you agree to this and witness them signing your Will. A member of our staff could, therefore, sign the Will on your behalf if necessary.
- We can visit you at home and witness you signing your Will from outside while you remain inside, e.g. through a closed window with documents being passed through the letterbox. In this situation, as outlined above, we can also sign the document on your behalf if you are happy for us to do so.
What if I do not follow the section 9 criteria?
If the signing formalities are not followed, your Will is likely to be invalid and will be open to challenge in the event of your death which can be costly and could mean that your estate does not pass to your chosen beneficiaries.
Whilst the usual formalities for signing a Will must be observed and can lead to a Will being invalid if not, there is also potential for other possible challenges to a Will resulting from the COVID-19 outbreak. As many instructions for Wills are now being received by email or telephone call (far more than usual) rather than at a face to face meeting, there are increased possibilities for those with ulterior motives to unduly influence a person into preparing a Will that they really do not want to sign. In addition, a person wanting to make a Will must have testamentary capacity, i.e. the mental ability to make their Will. If there is doubt about capacity, then it could lead to a challenge.
With instructions and Will signings being undertaken in unusual circumstances, it’s possible that challenges of this nature will increase during and after the COVID-19 outbreak. Whilst the possibility of a challenge can never be completely excluded, it’s important to seek legal advice at the earliest possibility to give your Will the best chance possible of being valid and avoiding claims or challenges to it in the future.
Before you make a Will, it’s important to consider who you would like to deal with your estate, who you would like to benefit from it and, if you have any children under 18, who you would like to take care of them on your death.
With experts on hand via email, phone and video conferencing, we can advise on all manner of concerns arising from the pandemic crisis. Please do get in touch if you have any queries.
