What the implications of the COVID-19 lockdown for creating a Will?
To be deemed legally valid a Will must be in writing and signed by the testator (the person making the Will) in the presence of two witnesses, who must also sign the Will. All of these aspects of drafting a Will can be handled remotely, with one exception; witnessing. According to the BBC News, there have been reports of people signing Wills on car bonnets, and witnessing signatures through windows and patio doors.
The problem is that the Wills Act 1837 has not been amended for such an eventuality as a global pandemic, and hence modern digital methods of witnessing (e.g. video conferencing) and signing (electronic signatures) are not permitted in law.
So How can we Overcome Amending Wills During the Coronavirus Outbreak?
- The Law Society has confirmed they are actively seeking a solution to witnessing during the lockdown, with the Ministry of Justice, and hence in the meantime, it is still necessary to find a way to have a Will witnessed and signed without contravening the Government’s social distancing guidelines.
- It is recommended that you:
- Record and retain a video of the witnessing and signing process – in the unlikely scenario the Will is challenged for being invalid due to improper witnessing, this will provide evidence it was undertaken correctly.
- Make sure your Solicitor keeps a copy of the video and ask them to make clear notes on your file regarding how the Will was witnessed/signed.
- Once the lockdown period is over and it is safe to leave your home, speak to your Solicitor about having the Will witnessed and signed again – to avoid any possible uncertainty or future challenge.
- Follow social distancing measures when you have your Will signed – you and the witnesses all remain 2 metres apart from each other, you all wear gloves, and you may prefer to use your own pens. You will most likely need to make arrangements to meet your preferred witnesses (ideally neighbours) at an agreed location and make it clear the order in which the process should be undertaken (i.e. you will sign first with both witnesses at a distance, you will then walk away and allow them in turn to sign the Will).
- If you are planning to have the process recorded on video, you may need another person to carry out the filming - who should also observe social distancing measures.
Should I Draft my Own Will?
It is understandable that some individuals will choose to prepare their own Will in the light of COVID-19, in the belief that it will not be possible to engage the services of a Solicitor. The first point to make is that most Solicitors and law firms are still operating across the UK, typically from the isolation of home, and can draft your Will.
They can take your instructions by video call (e.g. Face Time, Skype, WhatsApp etc.), or by phone, and then send you all of the necessary paperwork by mail. They will also explain the requirements for having the document signed and witnessed before being returned.
DIY Wills may be an option for those with very straightforward needs. While they result in a small cost saving, the risk is that the Will is not valid when enforced on your death. A Wills and Probate Solicitor, on the other hand, will ensure your Will is drafted, signed, and witnessed in a way that ensures it is valid. If your Will is deemed invalid, on your death the rules of intestacy will apply, meaning that your wishes for estate/inheritance may be disregarded.
Anyone with slightly more complex arrangements, including stepfamilies, business interests, multiple properties, and trusts, should always have a Will drafted professionally. Doing so will ensure that every possible scenario is considered by the Solicitor drafting your Will, so that when it is enforced, there is no ambiguity or challenge.
COVID-19 is making more people draft and review their Wills with urgency. The social distancing rules are posing a challenge to the drafting and witnessing process, but these can be overcome with some planning. If you are unsure about any aspect of making a Will, speak to a Wills Solicitor who will be able to guide you through the process, explain the costs, and answer any questions you have. Waiting for the lockdown to draft or amend your Will is not recommended, after all, there is no certainty as to when and what shape it will take. And if the news media has shown us anything, COVID-19 affects all ages, therefore, no one over 18 should delay in drafting their Will.
Guillaumes LLP Solicitors is a full-service law firm in Weybridge, Surrey. Whether you’re looking for a sensitive family solicitor during these hard times or a probate solicitor, we’re here to help. To make an appointment, please call us on 01932 840 111 or contact us today.