The current COVID 19 crisis has lead people to review their circumstances and, as such, Private Client practitioners have seen an increase in the demand for Wills. This has been from a combination of people who had no Wills in place finally deciding to put their affairs in order and also those who have Wills but may not have looked at these for many years, to ensure that these still reflect their wishes. The government has acknowledged this increase in demand by designating those who prepare Wills as “key workers” with the authority to move around and see clients during lockdown.
This does however give rise to the biggest issue in preparing Wills under the current circumstances: how do you get enough witnesses together? Many of our clients (but by no means all) are classed as vulnerable, either because they are over 70 or have underlying health conditions.
The requirements for a validly executed Will are set out in section 9 of the Wills Act 1837. This states that the Will must be executed (signed) in the presence of 2 independent witnesses who must both be present and watching you sign before they also sign the Will. Subsequent statute and case law make it clear that the witnesses should not be family members, and in no circumstances can they be a beneficiary or the spouse of a beneficiary. If this was the case then any gift to that person in the Will fails. The witness should also be an adult (or someone close enough to adulthood and with the required level of maturity).
The current social distancing and self-isolation rules mean that it can often be difficult to find 2 people, who are not family members, to act as witnesses. There is also case law to say that Wills must be physically witnessed, and it would not be sufficient for these to be witnessed digitally (via webcam or video app).
The Law Society and The Society for Trust and Estate Practitioners have both been in discussions with the Government as to the relaxation of these rules, putting forward several proposals to help overcome this barrier:
Introduce Australian style Wills - in Australia the requirements for a Will are much more relaxed and have even be shown to extend to text messages.
Allow Armed Forces-styled “Privileged Wills”- UK law includes an exception to the requirements of s9 Wills Act for individuals in active combat scenarios. This would remove the requirement for 2 witnesses, or even for the Will to be in writing (although this is always encouraged). There have been suggestions that this exception should be extended to include those in self-isolation who are unable to comply with s9 Wills Act.
Allow digital witnessing - this has been requested on the basis that it may be a useful change to the law in any case, as an accurate reflection of modern life. The other requirements of s9 Wills Act would remain applicable but the witnesses could digitally witness the Will or include electronic signatures. A similar system is currently being trialled with mortgages.
All of these suggestions would require a change in legislation, which so far has not been forthcoming. The Government has advised it will keep a watching brief but is so far reluctant to change the strict formalities on the (entirely understandable) grounds that the rules are there to prevent fraud and the abuse of vulnerable persons. The more practical suggestions in the interim have been:
Asking neighbours to act as witnesses across the fence, maintaining the appropriate social distancing and putting in place as many as precautions as possible (such as wearing gloves, using separate pens, and handwashing after the event) to limit the potential spread of germs from touching the Will.
Doorstep witnessing by solicitors whereby the solicitor brings the Will to your home, together with a colleague, and they act as your witness while maintaining social distance. There is however still the issue of handling the Will.
Depending on your housing arrangements, seeing if there are 2 people within your household who could act as independent witnesses.
If you are vulnerable, but also close to someone else who has been self-isolating for a while, they may be able to act as your witnesses with a slightly reduced risk of contamination. Even in these circumstances you should maintain social distance and handwashing precautions.
In circumstances where you are seeking non-solicitor witnesses, it may be possible to ask your solicitor to oversee the process by video call, to ensure correct formalities are adhered to.
None of these are perfect solutions, however it does show that it is still possible to prepare and sign a Will under the current restrictions.
If you would like to discuss updating your Will, or making a Will for the first time, then please do not hesitate to contact any member of our Wealth Management Team who would be happy to help.