Head of Private Client Stuart Crippin and Solicitor Natasha Southam address the issue of signing a Will during the lockdown, and explain how to ensure your Will is valid whilst maintaining social distancing.
With the outbreak of Covid-19 and the country on lockdown, we all find ourselves in unprecedented circumstances. Individuals and families are understandably more concerned than ever about their own health and that of their loved ones. It is unsurprising that the minds of our clients are being focused on ensuring that their personal affairs are in order, especially in relation to the preparation of Wills.
It is vital to ensure that the correct advice is being obtained and the requisite formalities are being followed to ensure that Wills are valid.
Whilst electronic signatures are now valid for the signing of commercial contracts, this is not yet possible in the case of Wills, where wet-ink signatures are required for valid execution.
Will signing formalities
In summary, the Wills Act 1837 provides that Wills must be signed by the testator in the presence of two independent adult witnesses who must also sign in the testator’s presence. Furthermore, in order to avoid complexities, a witness ought not to be a beneficiary (or the spouse/civil partner of a beneficiary) under the Will. In the current circumstances when most families are locked down and have no contact with anyone outside of their direct family unit, this requirement may well prove difficult to satisfy.
Whilst there is speculation as to whether the current circumstances will force England and Wales to update its Will legislation to permit e-signatures (as some other jurisdictions have begun to do over recent years), this is still realistically some way away. Consequently, the correct formalities must continue to be strictly followed.
However, even in these difficult times, it is possible to adhere to the formalities whilst still adhering to the social distancing requirements. Video conferencing for Will witnessing has been floated as an idea but this has been refuted by the Law Society as witnesses cannot validly witness the testator’s signature virtually as they are not both ‘present’ at the same time.
“In each other’s presence”
The main requirement is that the testator and witnesses all sign in each other’s presence. In these times of self-isolation, this requirement is of course trickier to adhere to than usual. However, there are still options available to ensure that Wills can be validly executed.
Your close family members should not be used as witnesses and you will need to call on your neighbours, or perhaps nearby colleagues and/or friends, to act as your independent witnesses.
One option could be for the testator and their chosen witnesses to sign on either side of a window or a glass door. The testator’s signature could be clearly witnessed before being passed through the window or letter box for the witnesses to sign in the testator’s presence and in the presence of each other.
An alternative could be for the Will to be laid out on a surface in a garden or in a driveway, for example. The testator and their chosen witnesses could position themselves at least two metres apart from one another and then take turns to sign the Will with the other parties watching.
Although it is usual and preferable for the testator and the witnesses to use the same pen, it would be understandable if all parties preferred to have their own pen in the current circumstances, and it is unlikely that it would present any difficulties in the future with proving that the Will was validly executed.
The Law Society has suggested that lawyers should obtain file notes from clients and place them on their systems, to record the circumstances in which a Will was signed and even for clients to record a video of the signature/witnessing of the Will.
Certainly, documenting the signature/witnessing process, whether that be with photographic evidence, a video recording or even having your acting solicitor on the end of a video call whilst the signing takes place are all additional measures which should be taken for the Will file, to help ensure that there can be no question about the validly of the Will signing process.
Still On Your Side
The Private Client team at Seddons is operating as normal and we’re here to listen, advise and prepare your Will for you in line with your instructions.
We are all working remotely and can arrange to speak to our clients, over the telephone or via video call, so that we can clearly understand their wishes, intentions and objectives. Instructions can be taken via Facetime or a preferred video conferencing app, and we are maintaining contact with our clients to provide advice via these means and alongside the normal telephone and email contact.
Importantly, where family members are often self-isolating together as a household, we have to be mindful of the potential presence of undue influence in the drafting of a Will. Whilst working remotely, our team can be available to speak to clients at a time convenient to them, to ensure clients are not being pressured into making decisions which do not reflect their wishes.
The information provided in this article is for general guidance purposes only and you should always take professional legal advice before signing your Will to ensure that it is validly signed and witnessed.
If you have any questions regarding this article or any Will, succession or estate planning matter, please get in touch with your existing Seddons’ Private Client contact or the Head of the Private Client, Stuart Crippin, at [email protected], or on 020 7725 8056.