Matthew Biles Partner, Head of Department, Private Client & Tax
Executing your will in the time of COVID-19
The execution of Wills can be complex at the best of times and those doing so will want peace of mind that they have done it correctly. In light of the UK Government’s most recent guidance restricting the movement of the general public in order to limit the spread of COVID-19, there are more challenges than ever before to ensure that a Will is validly executed in England and Wales.
We appreciate that both personal safety during the pandemic and being able to ensure that your post death wishes are properly respected are extremely important and will seem a matter of urgency for many, especially in these uncertain times.
So what are the formalities for valid execution of your Will?
The legal formalities for validly executing a Will are set out in Section 9, Wills Act 1837 which have been clarified by various case law over the years. This includes the testator’s signature being witnessed by two witnesses. The witnesses should be unrelated to the testator, and so may not be part of his or her household. Additionally, they must not benefit under the Will in any way, and neither must their spouses or civil partners.
Are the formalities still as important in the time of COVID-19?
We understand that in these uncertain times it can seem even more pressing to arrange for a Will to be signed so that you can have the peace of mind that when you die your affairs will be dealt with as you would like. This is important when the country is not in the midst of a pandemic and therefore it is of no surprise that it is now even more important to so many of our clients. However, the law is strict on the formalities needed for valid execution of your Will, and these can seem difficult to follow whilst also following the guidelines set out by the Prime Minister and by Public Health England.
The Government’s guidelines state that gatherings of over two people are allowed for legal obligations, which we argue includes the valid execution of a Will in England and Wales.
It must be noted that it is possible, and not uncommon, to contest a Will with regards to its validity. With this in mind, we have produced a step by step procedure for our clients as we appreciate that there is a difficult balancing act between maintaining your safety during these times and ensuring that your Will is validly executed. We want to ensure you can have peace of mind that your assets will be distributed to those you love as per your wishes after your death.
Suggested step-by-step procedure
We suggest you have the Will witnessed outside, in your garden or a communal space whilst carrying out your daily exercise allowance and with only your two witnesses present. You can still do this whilst maintaining a distance of two metres (six feet) at all times. We suggest that all parties should consider wearing gloves, bringing their own pens and washing their hands thoroughly just before and straight after signing and witnessing the Will. Our suggested step-by-step procedure ensures that your Will is valid, whilst you are also following the guidelines as closely as possible to try and reduce the chances of infection:
- Before coming to the signing, as the person signing the Will, you should sign your name at the foot of each page, and at the end of the document where indicated. You should also fill in the date in words in the spaces provided.
- On the same day you should then meet your witnesses whilst ensuring that all parties are two metres (six feet) away from each other at all times and with a central table.
- With gloves on, you should come forward and show your witnesses your signature and state to your witnesses that you “confirm that it is your signature on the Will.”
- Place the Will on a table or flat surface weighted down by an object that will not in any way mark the Will.
- Each witness should then come forward individually with their own pen and sign the Will only at the end of the document where indicated to acknowledge your signature, including their name, address and occupation as directed.
- Both you and your two witnesses must initial in the margin against any alterations or additions to the type. You can do this before you meet with your witnesses.
- Do not pin or "paper-clip" anything to the document.
- You should all depart and wash your hands as soon as is possible.
- If possible, please scan or take photos of the executed Will and email them to us so we can check the will has been validly signed. In the current climate we recommend you store the Will in a safe location at home until it becomes easier to post the Will to us for secure storage. Please do let us know if this is not possible.
Use of technology for those in isolation?
It is tempting to suggest that our procedure above could be carried out with a technological element, with the testator confirming his signature by video link and then having it delivered to the witnesses to add their signature. There is no clear case law yet to suggest that watching something by video is the same as being present at an event. We would therefore urge you not to risk invalidating your Will in this way.
What about Scotland?
We do not practise Scots law but we do note that the rules are different in Scotland, and you should not confuse the differing rules in each jurisdiction. There has been guidance produced by the Law Society of Scotland suggesting a Will can be signed whilst being recorded via live video link. It is suggested that the solicitor is then able to sign the Will on receipt of the document. This will still not be deemed valid execution under the law of England and Wales. Under Scots law a Will essentially requires only one witness whereas under English and Welsh law two witnesses are still required to simultaneously witness the Will being signed.
Unless, and until, the legislation is changed or there is case law to say that using technology to assist in the signing of a Will is effective in England and Wales we would urge clients not to risk such an important document being invalid. If a Will is invalid then the rules of intestacy are likely to kick in as discussed in our recent article here.
If you are impacted by any of the above issues or require advice on making a Will and planning your affairs, please do not hesitate to contact Matthew Biles (firstname.lastname@example.org) or Roger Peters (email@example.com), partners in the Gordon Dadds Private Wealth team, who will be more than happy to help. This article was written with the assistance of Edward Knox and Fergus Macleod.