In these difficult and uncertain times many people are considering having a Will prepared for the first time or reviewing an existing one because of family changes, executor updates or other significant changes to circumstances possibly as a result of this pandemic.
Irrespective of issues facing us all with COVID-19, a Will is an essential part of good estate planning, giving you and your family reassurance that your affairs are in order for what may lie ahead.
The Wills Act (1837)
The Wills Act (1837) sets out the following formalities in signing a Will, failing which the Will would not be recognised as a valid testamentary document.
- The Will must be in writing, whether typed or handwritten.
- It must be signed by the person making the Will (“the Testator”), or by someone else in their presence and at their direction.
- The signature must be made or acknowledged in the presence of at least two witnesses present at the same time.
- Each witness must sign the Will, or acknowledge their signature in the presence of the Testator, but not necessarily in the presence of each other.
Current social distancing requirements are creating real challenges to the normal execution of Wills but with many of our clients contacting us for help during this period, we have found ways to overcome these hurdles as follows.
We continue to take instructions from clients remotely by using video links such as Facetime, WhatsApp, Skype and Zoom. Often if these facilities are not readily available to clients, then family members or care homes can help facilitate the technology being made available to them.
If video link is not possible, then we can take instructions over the telephone and email, but we may need to have a face to face visit with those clients once the restrictions are lifted so we can ensure we have satisfied normal regulatory requirements.
There are lots of Will execution options now for our clients as well.
Can I use video conferencing for executing my Will?
The Law Society of Scotland has confirmed that video conferencing would achieve the relevant requirements; however, the Law Society of England disagree on the basis that the legislation requires a physical presence for the parties involved. Although this option is under review, it is not one that can be used today in order to create a valid English Will.
How can we organise the actual witnessing of our Will?
There are lots of innovative ways we can now help clients with the witnessing of a Will. Once the Will is approved by the client, we can either send a password encrypted version by email for the client to print, or we can send a signature copy by post. Either way, we will also send the client a comprehensive Will execution guide.
The client would need to find two independent witnesses, such as neighbours, but not beneficiaries or spouses of beneficiaries as this would invalidate their gift.
Witnessing could be undertaken through an open window or door, or in extreme cases, there may have to be a window separating the parties. The important thing is that the witnesses must have line of sight to see the testator sign and similarly the testator should be able to see the witnesses sign. Each individual must use their own pen and if possible wear disposable gloves.
We have also found that clients find it comforting for us to join the Will signing via video link or telephone. This would not only provide us with the ability to ensure that the formalities were being dealt with correctly, but we could also consider other issues, such as undue influence, capacity and knowledge.
Is there a way of witnessing a Will whilst socially-distancing?
Solicitors acting in the execution of Wills are classified as keyworkers. Although being mindful of the social distancing requirements, we can assist those who are struggling to execute their Wills at home by organising a “face to face” meeting outside.
At our Woking office, we have a large car park that is currently being used in the Will execution process. Whilst the client remains in their car, two of our team deliver the relevant will to the client in their car. The client (Testator) then reads and signs their Will whilst the two Barlow Robbins representatives witness the Testator’s signature.
Barlow Robbins is here to adapt to these unprecedented times to ensure that we meet the needs of our clients and to provide them with the reassurance that their affairs are in order. For further information, please contact one of our specialists who will be happy to discuss your matter with you.