Preparing & executing a will during COVID-19

At times like these, many people will be worried about their health and that of their family.  They often wish to ensure that their affairs are in order.  One of the most important documents they can sign in order to do this is a will.  A valid will ensures that their assets are passed to who they wanted, when they wanted and in the right way.  

Pre-coronavirus this was a much more straightforward proposition.  Given the current circumstances we find ourselves in, everyone making a will is now faced with various challenges.  These can be overcome for the majority of people, but care and consideration must to be given to the following.

Giving instructions as to what you would like in your will

Face to face meetings with your legal adviser are now difficult since legal advisers are, like everyone else, obliged to stay at home for at least three weeks and not to travel to a client’s home to take instructions.  It is possible to overcome this hurdle through the option of meetings via telephone or videoconferencing in order to get the information needed to draft the will.

Difficulties could also arise from your legal adviser's need to assess mental capacity if the testator (the person making the will if they are male and testatrix if they are female) is elderly or has an illness such as Alzheimer’s.  Obtaining a doctor's report confirming capacity, given the current pressures on the National Health Service and GP’s practices, could prove a lengthy process if that was considered necessary.  

So how do you ensure that a will is executed validly?

While the use of technology may assist in taking instructions and assessing capacity if that is an issue, it may not overcome the other hurdle - that of witnessing a will.  

Your will is not valid until signed and witnessed

In England and Wales, a will is not valid unless it is signed by the testator in front of two witnesses, who must both see the testator sign. Neither of these witnesses (nor their spouses or civil partners) can be a beneficiary under the will and they must be over 18. The witnesses do not need to read or know the contents of the testator’s will, but in turn they must sign the document in front of the testator and then print their full names, addresses and occupations below their signatures.

Witnesses must both be physically present and sign on paper

The government recently accepted the Law Commission's opinion that electronic signatures on contracts and deeds are legally valid without the need for formal primary legislation, but wills remain an exception and a ‘wet’ signature on paper is still the only way to ensure validity.  However, maintaining the government’s recommended personal separation of at least two metres (six feet) apart will be difficult for witnesses who must both be present at the same time. 

In practice this may mean that, for the duration of the COVID-19 crisis, legal advisers may have to send wills to clients and ask them to make arrangements for suitable witnesses to visit them while following social distancing advice. Witnessing a will from the next room or through a window could be challenged as not being formally ‘in the testator’s presence’.  We may have to go back to some very old case law from 1781 suggesting that it might be sufficient to have two witnesses who are in line of sight, though not necessarily in the same room.

A template to provide information on the circumstances surrounding the signing of the will

For the time being and until further specific guidance is issued, it may be wise for people wishing to make a will to follow the legal requirements as far as possible and return a separate document along with their will which confirms that:

• you understand the will fully and that it reflects your instructions and intentions.
• you have told your witnesses that you have read and understood the contents of your will and have signed and dated it in front of both witnesses, who both saw you sign.
• there are no errors, omissions or spelling mistakes in the will. If there are, that you and your witnesses have put your initials beside any changes in each other’s presence.
• both witnesses have signed in front of you and printed their full names, addresses and occupations below their signatures.
• neither of your two witnesses, their spouse or civil partner, are a beneficiary of your will and that they are over 18.

This could be shown as evidence if there was a challenge of the validity of the will and would help in establishing the circumstances surrounding it.