COVID-19: Wills & Lifetime Planning
PRECIOUS IGBOKWE >
Senior Associate - Head Of Private Client | LondonTue 14 April 2020
COVID-19 (coronavirus) has disrupted our daily lives as we know it and made a strange new world for all of us. It has challenged leaders in government and business to alleviate concerns and respond to the crisis.
In these uncertain times, we and the profession as a whole, are seeing an increase in enquiries from people looking to put their affairs in order and make or update their Wills due to the coronavirus. The government has also elected solicitors, especially those involved in the execution of Wills, as ‘key workers’ in order to meet the increased demand.
In the last month, there has been both a surge in demand for updated wills by anxious clients and an announcement by the government that people need to “stay at home and away from others”.
Fear about what the future may bring can sometimes lead to people making rash decisions, therefore it is important to discuss your Wills with a solicitor. Discussions with a solicitor can help to highlight issues that need to be considered, based on personal and financial circumstances.
Our solicitors continue working as normal, albeit remotely and can take our client’s instructions over the phone or by video chat; draft documents and email to clients to print at home or post it.
We are approaching the array of issues COVID-19 presents through the lenses of people.
Therefore, obtaining an independent witness, let alone two independent witnesses has become an acute problem.
In this article we aim to answer some of your frequently asked questions below, as follows:
Q: What are the formal requirements for making a valid Will?
A: Before we can understand how the Will making process in England and Wales is being affected during the COVID-19 ‘lockdown’, we need to understand the legal formalities that make a Will valid under the Wills Act 1837 (‘the Act’). Section 9 of the Act states that no Will is valid unless:
- It is in writing, and signed by the testator (the person making the Will), or by some other person in his/her presence and by his/her direction
- It appears that the testator intended by his/her signature to give effect to the will
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time
- Each witness either attests and signs the will or acknowledges their signature in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.
Q: Can Wills be witnessed remotely?
A: There has been a lot of speculation as to whether Wills can be signed and witnessed remotely, e.g. through Skype and video conferencing calls, and this approach has been taken in Scotland. However, the consensus appears to be that this isn’t currently possible in England & Wales given the strict requirements in Section 9 of the Act.
Q: The witnesses can’t come in my house during the lockdown, so what can I do?
A: The Act states that a testator must have their signature witnessed by two independent witnesses. But with the current social distancing measures and lockdown this is becoming difficult to adhere to. So how do we make sure we are complying with government guidelines whilst complying with the formalities of the Act?
Using case laws, it would appear that the testator and the witnesses being in each other’s line of sight would be enough to satisfy the requirement of “presence”. It could therefore be possible to maintain social distancing practices while executing the Will by:
- having the witnesses present in an adjoining room, as long as they are visible to the testator and vice versa;
- Witnessing through a window; or
- All parties involved being in an open area while observing the recommended social distancing.
The above examples are said to be enough to meet the section 9 requirements of the Act. Whilst this is not the best method of signing, it would be better for a testator to sign their will in these circumstances than to remain intestate or with an out of date Will that does not reflect their current wishes.
In circumstances, however, where wills cannot be properly witnessed at all, for whatever reason, then other options for testators include:
- making lifetime or donatio mortis causa (death bed) gifts; or
- preparing a letter of wishes which, whilst not legally binding, might be expected to be followed by the family after death
Q: Can my family members at home sign my Will?
A: It is crucial that you do not ask a family member who (or whose spouse or civil partner) stands to benefit from your will to act as a witness, as this will make the gift left to them invalid.
Q: Can my witnesses and I sign my Will electronically?
A: Unfortunately, this would not be a valid signing method for a will without an emergency change to the law.
Q: How do I validly execute my Will while reducing any unnecessary risk of exposure or transmission?
A:The requirement is that testators and witnesses need to be in the presence of each other when signing. This requirement is satisfied if signing takes place indoors or outdoors and other appropriate social distancing measures can be adopted. We recommend all parties involved adopting the following practice when signing in order to reduce risk:
- Stand at least two metres away from each other
- Do not share pens, use your own pen
- Wear gloves (preferably disposable gloves)
- Wash your hands before and after signing
Q: What advice would you give elderly and vulnerable testators during this time?
A: Your health is the utmost importance so please follow government guidelines regarding this pandemic.
If you are elderly or vulnerable then the best advice is to execute your Will or amend your Will in the best way possible without a risk to health.
If this means a new Will or codicil is executed in less than ideal circumstances, and the requirements of section 9 are being stretched (especially if a contentious probate dispute is expected), then best practice is to prepare a short statement from the witness to accompany the signing so that the circumstances are outlined. This will then help to protect the validity in the event of a challenge after death.
Q: Will there be legal changes in the formalities of making a valid Will due to the current climate?
A: The good news is that the Law Society and the Ministry of Justice (MoJ) are currently discussing relaxing the formal requirements. This could involve changing the number of witnesses required, or possibly accepting other solutions, such as video witnessing.
The MoJ have said any temporary relaxation of the rules would have to be balanced against the risk of fraud, with the rule about two independent witnesses historically in place to protect the vulnerable.
A MoJ spokesperson said: “This is a delicate area of law and we absolutely must continue protect the elderly and vulnerable against potential fraud. While there are no current plans to change the law, we will consider all options and keep this under review during the Covid-19 pandemic.”
In our opinion, allowing solicitors to witness wills via video link would be the preferred emergency measure for the government to bring in while the country is in ‘lockdown’. We feel this would provide adequate safeguards against abuse and allow solicitors to assess the client’s testamentary capacity and vulnerability to undue influence and also act as one of the witnesses in the signing process.
Now, more than ever, it is important for people to be attentive when putting together or updating their Will to ensure that it will be valid.
We are committed to supporting our clients through this unprecedented period and helping them manage many complex issues surrounding COVID-19. So whilst we wait for guidance on this unprecedented situation, despite the restrictions, it is not impossible to put your affairs in order and we are here to help where we can.
TAKE A LOOK AT