Understandably the coronavirus pandemic has caused many people to consider their existing Will or has encouraged them to make one.
What is the issue for will signing?
The current lockdown to slow the spread of the virus is causing problems with the signing of Wills because the Wills Act 1837 requires the person making the Will (the testator) to sign in the presence of two witnesses (and they need to be independent adults who are not benefitting under the Will).
Can modern technology help?
It can in terms of discussing a Will. Usually, best practice is for a solicitor to take Will instructions face to face and then oversee the legal signing formalities of the Will, but this is simply not possible given the current measures in place to slow the spread of the coronavirus. Telephone calls and, where available and appropriate, video calls are the best means possible in most cases. It is worth noting that a solicitor acting in connection with the execution of a Will has been designated as a key worker by the government.
In relation to the legal signing formalities, unfortunately our legislation has simply not caught up. In England & Wales it is not currently possible to use video calling as a means of witnessing a Will nor can it be signed electronically.
We understand that the Ministry of Justice and Law Society of England & Wales are reviewing ways to modernise the formalities required to execute a valid Will (even if these measures are temporary), but it is unclear when any measures will be introduced.
Elsewhere, the guidance from the Law Society of Scotland has been amended to allow video conferencing to assist with the witnessing of someone signing their Will. Similar provisions may be introduced in England & Wales but, in some clients’ cases, video calling may simply not be possible.
What is current best practice for dealing with Wills?
There is no clear guidance at the time of writing given that the lockdown measures are at odds with the law regarding Will signing. Each individual client’s circumstances will vary and we are advising on a case by case basis.
The testator and their witnesses need to be in the presence of one another and this is only met if the witnesses are in the same room or outside with the testator. This can still be carried out with appropriate social distancing, a different pen can be used by each individual and the document handled with hands which have been washed thoroughly or with gloves (disposable ones are recommended).
Very old case law (Casson v Dade (1781)) suggests witnessing through a window or door may be permitted but it is not advisable to test this principle of being ‘physically present’. That said, it is hoped that the current circumstances would be considered.
There is no perfect solution. New legislation or guidance would be welcome to assist where possible. Meanwhile it is a question of taking the most sensible precautions possible when it is imperative for a Will to be validly signed.
A reminder of why it is important to make a Will
- If you die without a Will (or one which does not deal with all of your estate) then your assets will be distributed in accordance with the statutory rules of intestacy to your closest relatives in strict shares and order of priority, fixed by law. By way of examples: your husband or wife will not inherit all of your estate if you have children and the value is over £270,000 and, in another common scenario, an unmarried partner or a stepchild would not be included as a beneficiary of your estate under the intestacy rules. It is therefore essential to have a Will which truly reflects your wishes and circumstances and to review such documents from time to time.
- A well drafted Will can be inheritance tax efficient as well as protecting assets.
- A properly drafted Will makes it much easier for your estate to be administered and it reduces the chance of a dispute.
- Guardians can be appointed for children under 18.