The coronavirus is an unprecedented and fast-moving crisis which has understandably led to many wanting to put a Will in place. Currently, for a Will to be valid it must be signed by both the testator and two independent witnesses. As the pandemic continues to intensify and with government measures becoming stricter, some may face practical difficulties adhering to the witness formalities required to validly execute a Will. With this in mind, The Law Society and the Ministry of Justice are looking into ways to deformalize the procedure.
The potential problem
A Will may be invalid if it doesn’t adhere to the formalities as prescribed by the Wills Act 1837, including where it has not been signed in the presence of two witnesses.
On 23 March, the UK Government published updated guidance to reinforce their plea for the UK to ‘Stay home. Protect the NHS. Save Lives.’. The very limited purposes to leave the house include: shopping for basic necessities, engaging in one form of exercise a day, for any medical need, or to travel to work (where it is not possible to work from home).
The question arises, for practitioners and individuals wishing to make a Will, of how to comply with the government’s official advice on self-isolation and social-distancing, while also ensuring Wills are validly signed.
Problems can even arise for those self-isolating with others, such as family members. For example, if a witness to a Will is also intended to benefit under the Will, the Will remains valid but the gift to the witness will fail. This also applies where the witness is the spouse or civil partner of a beneficiary under the Will.
Further difficulties may be faced where an assessment of the testator’s capacity to make the Will is required. It would be particularly problematic in circumstances where a medical report is required, given the current pressures on the NHS.
What are the options?
There have been some suggestions on how witness requirements could be relaxed (either temporarily or on a more permanent basis) in order to solve the difficulty surrounding the witnessing of Wills in the time of coronavirus:
Witnessing from a distance
If you do go out, the Government guidance says to stay away at least 2 metres (6ft) away from others. It is unclear whether witnessing a Will from such a distance, for example from the next room or through a window, would satisfy the 1837 Act.
Old case law (Casson v Dade (1781)) suggests that, provided the two witnesses are in the line of sight though not in the same room, the formalities would be satisfied. It remains to be seen whether the authorities would accept this reasoning or whether it would be judged to not formally be in the testator’s presence.
The military exception
The Government has announced that as a result of the pandemic, the country is facing a “moment of national emergency”. It is therefore no surprise that more people want to put a Will in place and want to do so quickly and effectively.
As a result, some practitioners have suggested that legislation could be introduced which adopts the approach of Will-making for those in the armed forces, known as Privileged Wills.
S11 Wills Act 1837 allows a Will to be drawn up without any formalities. This provides for when individuals do not have the time or means to comply with the usual formalities, meaning a Will can made orally or in writing, without the need for witnesses to its execution.
It remains to be seen whether legislation of this kind will be introduced to cater for those who may be particularly at risk and wish to deal with their estate as quickly and safely as possible.
In the time of coronavirus, where many are staying connected through apps such as Facetime or Skype, a partial solution to the problem may be to facilitate valid Will execution through the use of e-signatures and video-witnessing.
As it stands, electronic signatures have already been accepted as legally valid ways to execute certain documents such as contracts and deeds, with Wills until now remaining an exception.
Video-witnessing is also not permitted by the 1837 Act as witnesses must be physically present. However, Law Society guidance confirms that it is possible to supervise the signing of a Will using electronic means where you are not acting as witness to the Will. This paves the way for practitioners to still be able to supervise the Will execution, despite not being physically present.
Over recent years the Law Commission has been looking into ways to introduce electronic Wills into UK law. Examples from international case law include a legally valid Iphone Will, a Will by Word document, and a Will made by DVD recording. Some have therefore began to wonder whether the threat of Coronavirus will be the opportunity to revolutionize Will-making in the UK once and for all.
Another consideration has been to amend the part of the Will that deals with the witnessing of the testator’s signature (the attestation clause), in order to cater to the circumstances we are currently facing.
It has also been suggested that, where appropriate, arrangements are made to to re-sign the Will once social distancing requirements are lifted.
Comment from Boyes Turner's Wealth Protection team
Already we have seen many sectors adapting to the coronavirus crisis, and the private client sector will be no exception to that. Time will tell what measures are put in place to ensure that Wills can continue to be executed effectively and, most importantly, safely.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.