The COVID-19 pandemic is leading to a rise in the number of people making or updating their Wills. Although lockdown measures are starting to loosen, concerns about the risk of face to face meetings are likely to persist for some time, resulting in various challenges when it comes to making and executing a Will. There has been much discussion reported in the press as to whether the government should temporarily relax the law on the execution of Wills. Emily Minett explores the position.
How do I make a Will in “lockdown” or if I’m self-isolating?
The Ministry of Justice has confirmed that solicitors acting in connection with the execution of Wills are “key workers” and whilst it might not yet be safe to visit you (depending on the circumstances), we are well placed and readily available to take your Will instructions “at a distance” by email, telephone or preferably video call.
How should I sign my Will once it has been finalised?
Your Will must be in writing, and signed by you and two independent adult witnesses. You must sign your Will (or acknowledge your signature) in the presence of both witnesses at the same time before either of them attest the signature. It is not necessary for the witnesses to read your Will. If a witness is a beneficiary under your Will or a spouse of a beneficiary, then their gift will fail.
Clearly these requirements might cause difficulty, assuming the people in your household are the intended beneficiaries. Also, current government guidance is that you can only meet with one person from another household (in a public space and at a distance), but two witnesses are required for a Will.
Witnesses should only be independent from you; they do not need to be independent from each other. You could therefore ask your neighbours who might be a married couple or parent and (adult) child. In order to adhere to social distancing guidelines, you could sign your Will within sight of the two witnesses on either side of a window, over a fence, or with the front door open, stood more than two metres apart. Once signed, you could place the Will outside the door (or through the window) and step back whilst your witnesses sign in your sight and in sight of each other.
Can I FaceTime my witnesses and ask them to watch me sign my Will, then scan a copy to them to sign?
This procedure is acceptable in Scotland but it has not been accepted in England and Wales.
Over the last few weeks there has been much discussion surrounding the problem of executing Wills in lockdown and the Ministry of Justice is said to be looking at a temporary relaxation of the rules, which could involve a reduction in the number of witnesses, or witnessing signatures remotely by video conference. However, at present the law has not been amended and it does not appear as though there is likely to be any move on this in the immediate future. As there is no legislation expressly permitting the use of video technology, we must proceed on the basis that “physical” presence of the testator and witnesses is required.
Whilst the requirements might seem frustrating in these current circumstances, having two independent witnesses provides important safeguarding to those making Wills, in particular against undue influence and fraud.
Any changes to the law of Wills are most likely to be seen further to the Law Commission’s public consultation, launched in 2017, seeking to modernise the law of Wills, taking into account the changes in society and technology. We understand that the timetable for the development of new policy remains under review but we will be keeping a close eye on this.
Should I wait until “lockdown” is over to make a Will?
If you do not have a Will, on your death your estate will be governed by the intestacy rules, which might not reflect your intentions and could also result in adverse tax consequences. For example, many people assume that their entire estate would pass to their spouse without a Will, but this is only the case if you do not have direct descendants. We are available remotely to help you manage your estate planning, and find solutions to any issues regarding the execution of important documents, despite the current challenges.