Witnessing a Will during social distancing

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Chris Green, a solicitor specialising in contested Wills, looks at witnessing a Will during social distancing

With the current lockdown and restrictions in place due to COVID-19, a major question has arisen over witnessing a Will during social distancing and whether it is still possible to execute a valid Will at this time.

The legal formalities for a valid Will to be made are set out in the Wills Act 1837, a piece of legislation which is over 180 years old.

Amongst those rules, there is a requirement for the testator’s signature to be witnessed by two or more individuals, present at the same time.

It may well be tempting for a testator to turn to the nearest individuals to act as witnesses, being those within the same household. However, not only would that potentially raise an issue about undue influence having been exerted on the testator (potentially leading to a future dispute), but any gift to a beneficiary will fail if that beneficiary acts as a witness.

Accordingly, while the Will would technically be valid, depending on who acts as witness, the true wishes of the testator as to who they wish to benefit from their estate may not be achieved.

With social distancing now firmly in place, the question is how are people supposed to properly execute a Will without breaching the Government’s guidance or restrictions? Can electronic means, such as WhatsApp, Zoom or Facetime, be used?

A witness only needs to see the testator sign the Will, so there are several ways in which the legal formalities can be met, whilst also observing the requisite social distancing.

These include:

  1. The parties standing far apart in the same room, with the Will being passed between the signatories;
  2. The testator signing the Will while the witnesses watch from the other side of a window. The Will can then be passed, either through the window or a letterbox, for the witnesses to sign; or
  3. The signing of the Will could take place in a garden or in the street, with neighbours acting as witnesses.

It may also be advisable for different pens to be used by all involved, or wiping down the pen each time before use by another.

Another alternative is that the testator could sign the Will beforehand, and then show the pre-signed Will to the witnesses, before confirming that the signature is theirs. The Will is then signed by the witnesses. This is known as “attesting”. However, it is preferable for the Witnesses to actually see the testator sign the Will.

There have, even before the COVID-19 crisis arising, been numerous calls for the formalities set out in the Wills Act 1837 to be relaxed or updated, with electronic execution being permitted.

Those calls have only been amplified by to the COVID-19 crisis, with some asking for a temporary allowance for universal “privileged Wills” being permitted, which would be akin to the special rules which apply to military personnel.

However, at present, there appears to be no moves being made by the Government, the Ministry of Justice or the Courts to relax the current rules and legal position.

If you are in any doubt about witnessing a Will during social distancing then it would be prudent to take specialist advice. When we make a Will for our clients we are providing them with specific advice on how it should be witnessed during the current crisis.

Alternatively, if there is a question over the validity of a Will, particularly in relation to the way in which it was signed and executed, then please contact our Contentious Probate Team on 0808 139 1606 or email us at [email protected] for a free assessment. We handle a variety of disputes and issues surrounding contested Wills and can often work on a No Win, No Fee basis.