It is a valid Will... or is it?

In this article Ally Tow, a Senior Associate - solicitor specialising in the Dispute Resolutions team, discuss some of the practical solutions to executing a will during the time of social distancing as well as the possible risks and disputes that can arise as a result of invalid will execution.

The current position

The Wills Act 1837 clearly did not anticipate the concept of ‘social distancing’. Since the end of March, the Ministry of Justice and the Law Society have called for relaxation of the requirement for two independent witnesses to be physically present when a will is executed.

In Scotland, the Requirement of Writing (Scotland) Act 1995 already allows for the witnessing of Wills by videoconferencing. Some jurisdictions, such as Jersey, have even adopted temporary measures to provide for alternative means of execution during the pandemic.

However, a month on from the announcement of national ‘lockdown’, the Government of England and Wales shows no intention to change the law in the immediate future. Parliamentary under-secretary Alex Chalk has commented 'the constraints of the COVID-19 situation must be balanced against the important safeguards in the law to protect elderly and vulnerable people in particular against undue influence and fraud'.

As a result, the question of how to witness a will in the time of coronavirus without breaching social distancing rules remains a real concern for many.

Until temporary or new permanent measures are put in place, what practical solutions are available to safely and validly execute a will?

The meaning of ‘presence’

The requirement that the testator must sign the will in the presence of two independent witnesses has been examined by the court to mean that it must be signed in the witnesses’ direct line of sight (Couser v Couser [1996] 1 WLR 130).

On this basis, a will can be signed and witnessed in a space where you can maintain an appropriate social distance provided that the line of sight is maintained throughout the signing process.

This may involve the testator asking appropriate individuals, such as neighbours or local visitors, to witness the will via the following methods:

• From a different room
• Outside (either in the street, garden, or over a fence)
• Through a window (of a house or car).

Should the testator not wish for a witness to know that the nature of the document is that of a will, they are not required to make the witness(es) aware.

Important points to remember:

• Both witnesses must be present at the same time 
• The witnesses must be able to see the testator sign the document 
• The document must not go out of sight between the testator and witnesses providing their signatures

Evidence suggests that the virus can survive on paper for several hours and precautions must be in place when handling a will that has been touched by someone else. Our best advice is for each participant to use their own pens and to follow the government recommendations, such as avoiding touching one’s face and washing your hands before and immediately after contact.

Where you cannot sign in the presence of witnesses

In exceptional circumstances where there is no other option available to the testator they can direct someone else to sign the will on their behalf. This may be a practical solution for elderly and/or vulnerable individuals who are self-isolating as, this way, no physical contact is necessary. Appropriate individuals who can sign the Will on behalf of the testator include one of the witnesses to the will or the practitioner who drew up the will.

It is important that, even under these circumstances, the testator and the witnesses (and the person signing on the testator’s behalf) satisfy the requirement of ‘presence’ by remaining in each other’s direct line of sight. For example, the testator remains indoors while the other participants stay outside and a line of sight is maintained through a window or an open door.

Whoever signs the will on behalf of the testator must also do so at the testator’s direction. This requires the testator to confirm:

1. That the will is the document they approved and provided for signature ; and 
2. That they direct an appropriate individual to sign on their behalf.

The testator must also acknowledge the signature in the presence of the witnesses by some sort of positive affirmation, such as a statement or even a gesture.

Where this option is used, the attestation clause must clearly reflect that the Will was signed on the testator’s behalf, in their presence and at their direction. We also advise that a video is taken of the process in order to serve as evidence of the testator’s direction.

Our advice

During these unprecedented circumstances, it is more important than ever to ensure that wills are validly executed, as failure to do so can lead to a testator’s wishes being frustrated and even disputes post-death as Ally will discuss. We therefore advise that you seek expert advice if you are considering making a will during the pandemic.

Where possible, we suggest that you video the will signing or ask a practitioner to supervise via video-link. You should also consider re-executing your will once lockdown restrictions are lifted.

Potential claims after death

Sadly it is not unusual for disputes to arise between families following a loved one’s death.  It seems to us, however, that there is going to be all the more likely if the will was executed by the testator during the time when the country was subject to lockdown restrictions imposed by COVID-19.  I discuss some of the more obvious examples of where claims are likely to arise.

Invalidity

It is likely we will see an increase in claims alleging that a will is invalid as a result of failing to comply with the provisions of the Wills Act 1837.  As Meg has set out above, there are many steps that testators can take to try to demonstrate that the formal requirements of Section 9 have been complied with.  However, these steps are not going to prevent such claims nor will they provide certainty as to the outcome of those proceedings.  Our advice is the more evidence testators can provide to show that the formal requirements as regards execution of a will were undertaken the better, particularly if the new will represents a significant departure from your previous will or wills – these are the wills that are going to come under even more scrutiny from the court and which are more likely to succeed.

Undue influence

Given the current lockdown restrictions, there is inevitably going to be greater scope for the execution of wills by the procurement of undue influence.

To establish undue influence sufficient to invalidate a will, it must be shown that the making of the will by the testator was not a free and voluntary action, i.e. that there was coercion. Unlike with the execution of other documents, in the case of wills such undue influence must be actual and not presumed.

One can imagine how potentially easy it could be for unscrupulous beneficiaries to see an opportunity to exert pressure on the testator – for example, an elderly relative who is currently locked in his or her house in self-isolation with 1 or maybe 2 other relatives.  They are unlikely to have access to any other family or friends or if they do such arrangements may well be made and monitored by those family members living with them so there is likely to be very little opportunity for the testator to be able to talk to their other family members and friends on an entirely free and open basis.  The family members are also likely to monitor any visits to the house (if visits are even possible) and could easily also intercept post.  The testator is also unlikely to have access to social services or any medical services.  The circumstances could be such that the testator will be entirely dependent upon the family members with whom they are living.

Furthermore, when taking instructions for the preparation of the will, practitioners are going to be in potential difficulties to ensure that the instructions are not being procured by way of undue influence.  As Meg has alluded to at the beginning of the article, we are recommending that consideration be given to whether or not to video the execution of wills but what about the giving of instructions?  If practitioners have to take instructions via video link because of self-isolating issues or other medical reasons (perhaps the testator is in hospital or a care home) unscrupulous beneficiaries could easily take advantage of the situation.

With this in mind, we are also taking steps to ensure that as practitioners we ask the testator to allow us to have sight of the room in which they are occupied and/or the immediate surrounding area so that we can try to ensure there is no other person present and/or within listening distance.  However, this by no means provides certainty against an unscrupulous beneficiary.

Lack of want of knowledge and approval

The question as to whether or not the testator had knowledge and approved the will is also undoubtedly going to give rise to an increase in claims in relation to any will exercised during the COVID-19 restrictions.

If a will has been correctly executed and was prepared by a solicitor who is able to confirm that he read over the entire contents of the will with the testator prior to execution, then this will give rise to a presumption of knowledge and approval.  Such presumption can, however, be rebutted and where this is not possible, if the circumstances of the offending will arouses the suspicions of the court (such as, for example, a significant departure from a previous will(s)) then it is likely to be set aside unless scrutiny of the will by the court has dispelled those suspicions.
Again, the potential difficulty here and area which are likely to give rise to more disputes is if the practitioner was not able to read over the contents of the will with the testator due to an inability to meet with them, even if only by way of video call.  Practitioners will take steps to endeavour to ensure that the will is read over to the testator by, for example, another household member or medical practitioner if the testator is in hospital or in a care home but this will not give rise to the usual presumption if the exercise has not been carried out by a lawyer and in any event, of course, does not necessarily mean that the exercise will have been undertaken at all and/or properly.

Testamentary capacity

In order to make a valid will, a testator must have testamentary capacity to do so.

The question of testamentary capacity has for many years been tested in English law by reference to what has become known as “the Golden Rule” which sets out a series of questions that should be asked of testators in order to test whether the testator had testamentary capacity.

As well as understanding the nature and effect of make a will and the extent of their property which is being disposed of, testators must understand and appreciate the claims to which they ought to give effect and importantly, must not suffer from any disorder or delusion of the mind capable of affecting their decision.

It is a medical fact that COVID-19 can cause pneumonia which in turn can cause hypoxia which is a condition in which the body or region of the body is deprived of an adequate oxygen supply. A side effect of such depravation may have an adverse effect on the question of whether or not the testator has testamentary capacity.

Again, in order to guard against such a possibility, practitioners will more likely to seek medical advice at the time of execution of the will and perhaps even arrange for the testator’s GP or other familiar medical adviser to witness the will.  However, this will not always be possible, particularly in circumstances where a testator may be executing the will in anticipation of his or her imminent death and of course does not in any event assist if the will is a homemade will.

Only time will tell as to the extent to which COVID-19 affects any ongoing claims in the future but it certainly seems to us that beneficiaries are going to be more inclined to consider bringing claims because of circumstances that would not have existed had the will not been executed at a time when COVID-19 restrictions were in place.

If you would like to enquire about making a will or the other services offered by the Wealth Protection team, please contact us and one of our specialist team will be happy to assist.