As a private client solicitor, my job involves daily face to face contact with my clients. As this isn’t possible at the moment I am very thankful that I can continue to assist my clients remotely from home.
COVID-19 calls for an update on the law on Will making
The Law Society and The Society of Trust and Estate Practitioners are currently in talks with the Ministry of Justice to relax the laws on Will signing, but until emergency measures are brought in, we must work within the confines of ‘traditional’ legislation. We do not yet know what form any emergency legislation will take – one suggestion is the introduction of measures mirrorings. 11 of the Wills Act 1837, which allows members of the armed services to make informal Wills, either in writing or orally, and without the need for witnesses. As a practitioner, this suggestion makes me nervous as it is open to abuse and I would much prefer a move to acceptance of digital signatures and/or signing witnessing via video call.
What are the current requirements for executing a valid Will?
- It must be in writing and signed by the person making the Will ‘the Testator’ (or by some other person in the Testator’s presence and by their direction).
- The Testator must intend to give effect to the Will by their signature.
- The Testator must sign in the presence of two independent witnesses who must sign in the presence of the Testator and each other.
- The Testator must have capacity.
- The Testator must not be unduly influenced to make the Will.
- The Testator must know and approve the contents of the Will.
How can we make the law work in the current climate?
- Client instructions can be taken over video call and draft documents exchanged via email (I will spare you an explanation of complying with identification verification procedures here….that is a whole new article!)
- A professional lawyer should be able to competently assess over video call whether they think you have the requisite capacity to complete a Will and they will be able to identify any issues which may give cause for concern e.g. undue influence.
- Once the Will is approved, final documents can be sent to the client to print (if they have a printer) or sent in the post. If using the post, please seek guidance on whether to quarantine incoming post for a period of time – scientific information can be found in the public domain on the possibility of Covid-19 being transmitted via paper.
- So long as the witnesses can see the Testator when they sign the document and vice versa, you do not have to all be in the same room – this is where outside space comes into play. The most obvious solution is for the Testator and two willing neighbours to stand near to their boundary e.g. the shared hedge/driveway so they are all in sight of each other and the signing can take place. We advise that all parties wash their hands both prior to and immediately after the Will signing; that all parties observe social distancing measures; that each party uses their own pen and where appropriate wear gloves or other protective clothing.
- Witnessing can also take place through a glass door or window, again so long as all parties can see each other when the signing takes place.
- As a belt and braces approach, the Testator and each witness should make a separate note of how the Will was signed – at Steeles Law we send a checklist for completion.
- Don’t be tempted to ask a family member who you are living with to witness the Will – they will automatically forfeit their entitlement to your estate if they are a beneficiary in your Will.
I am hopeful that in the coming weeks, this article will already be out of date if emergency legislation is introduced to relax the laws on Will signing and in the meantime if you have any questions regarding our Coronavirus: Practical tips for making a Will update please get in touch via email to firstname.lastname@example.org or call 01379 652141.
If you would like us to prepare a Will for you, please complete our Will Planner providing us with all your basic personal details and email email@example.com. This means we’re fully prepared ahead of our initial meeting, and we can create your Will as easy as possible.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.