In these uncertain times, many clients are considering putting their affairs in order—just in case the worst should happen. This is an entirely natural reaction to the advancing Coronavirus (COVID-19) epidemic. But where a client is in self-isolation, social-distancing or now affected by strict lockdown measures, the practical side of signing a new will presents significant challenges. This article takes a look at those challenges and suggests ways in which these can be overcome to enable a client to put in place a new will.
Signing a Will – The Formal Requirements
The formal requirements for the signing of an English will date from the Wills Act, 1837. They are:
The will must be in writing, and the testator or testatrix must sign it, or another person must sign it in their presence and at their direction.
It must appear that the testator or testatrix intended by their signature to give effect to the will.
The signature must be either made or acknowledged in the presence of at least two witnesses present at the same time.
Each witness must sign the will, or acknowledge their signature, in the presence of the testator or testatrix (but not necessarily in the presence of any other witness).
The Challenge During COVID-19
These formal requirements create the need for at least three individuals (the person signing the will and two witnesses) to be present together at the same time, all able to see one another during the signing of the will, and all adding their signatures to the same hard copy document. It is important to note that the witnesses cannot be persons who benefit under the will or who are appointed as executors. For many people, this means that members of their immediate household are disqualified from being witnesses.
Although electronic signatures have become acceptable for many legal documents in recent years, this has not been the case for wills, with wills one of the category of documents omitted from recent Law Society guidance on electronic signatures. In 2017, the Law Commission undertook a consultation on modernising the law relating to wills, including whether to allow electronic wills and to enable the court to dispense with formalities where the deceased’s wishes are clear. The progress of reform was paused when the government asked the Law Commission to focus on reforming the law relating to weddings as a priority. The gradual movement toward reform has now been overtaken by events, and we find ourselves in an unprecedented situation where the formal requirements of making a will may, paradoxically, prevent many clients from being able to put in place a valid will.
Can I Still Make a Will?
It will be possible for many clients to make a new will in the present circumstances. The UK government has recognised the importance of people being able to make wills by designating solicitors who are acting in the execution of wills as “key workers”. In many cases, it will be possible to provide instructions for the new will over the telephone or on videoconferencing facilities. These are important to assess other key requirements, such as the mental capacity of the client to make a will and to ensure that there is no undue influence being exerted on the client.
McDermott has prepared detailed will signing instructions that take account of Public Health England guidelines on maintaining social distancing and on hand hygiene. If witnesses can be found who are willing to act, this can provide a solution.
There may also be a technological solution available in the form of electronic signatures for the testator and the two witnesses (preferably solicitors), being present via a video meeting. Solicitors Regulation Authority has suggested considering electronic signatures for wills in circumstances where in-person witnessing is not practicable. While this does not meet the strict formal requirements for the valid signing of a will, it may nevertheless be an option when there is no other alternative. There is no official confirmation from the UK authorities that this will be accepted; however, we understand that it is being considered by government, along with other options for ‘deformalising’ the making of wills. The options under consideration are understood to include giving judges more flexibility when deciding what constitutes a will, a process where wills could be witnessed electronically, and allowing testators to write wills by hand without witnesses. This last option is similar to some features of the existing concept of a ‘privileged will’, currently only available to serving members of the armed forces.
While the outcome of discussions is awaited, the guidance available so far is that using technological solutions provides an answer where there is no practical alternative. Full notes should be kept by the lawyers of the circumstances as well as reasons for using electronic signatures and video witnessing in case the will is submitted to probate and to maximise the chances it will be treated as valid.
Once the COVID-19 measures have been lifted, any wills signed using such technologies can be updated by signing a new version of the will in compliance with the formalities required by the Wills Act.