COVID-19 and methods of Will execution

Published by Sarah Mannooch on 15 June 2020

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As a result of COVID-19 many clients are looking to make sure their affairs are in order, including drawing up or amending their Will. However, the social distancing rules have the potential to cause significant issues for clients wanting to execute their Wills.

In simple terms, to be validly executed a Will must:

  1. Be signed by the person making the Will (known as the testator), or by another person in their presence and at their direction; and
  2. Be signed by two independent people who ‘witness’ the testator signing the Will (witnesses) .

Crucially, the testator (or the person signing on behalf of the testator) and both witnesses must all be in the physical presence of one another at the time of signing. Clients are therefore facing issues finding two independent witnesses to be present at the signing whilst adhering to social distancing rules. So, what are the options?

External witnesses and social distancing

We are employing various creative ways of helping clients with the execution of their Wills. Each case is different, and we tailor the solution to fit the circumstances.

Where clients are unable to find their own witnesses, we can arrange for two members of our legal team to attend upon them at home or an outside space placing the Will on the ground or a table, or even a car bonnet!! The parties stand a suitable distance apart to observe the execution and take it in turns (with the testator always first) to each go to the document to complete the relevant section.

Our legal team have witnessed Wills through windows, so they can view the testator signing but there is a physical barrier to reduce the risk of contact.

There are also local ‘drive thru’ witnessing services that we can make arrangements with on your behalf – sending the Will to you on email to print or in the post to take with you.

Or if a testator can find his own witnesses, we will provide clear guidance on how to manage the execution procedure to ensure validity but whilst maintaining social distance, this includes giving guidance over the telephone or a video call at the same time, where necessary.

Signing on behalf of the testator

If the testator cannot leave the house at all, they can direct another person, such as a solicitor, to sign the Will on their behalf. That person must sign in the presence of the testator and the witnesses and must be directed by the testator. One advantage of this method is that the person who is signing on behalf of the testator can also act as a witness. This means you could direct one of your witnesses to sign on your behalf with very little contact.

Remote witnessing

It is not currently possible to remotely sign or witness the execution of a Will, for example by witnessing the execution or signing on behalf of the testator via video call. Despite the demand at this time for a relaxation or change to the laws governing the execution of Wills, it seems unlikely that a change to this will occur any time soon.

Given the importance of validly executing your Will, we would recommend you take professional advice if you are considering the options for signing your Will. You can contact our legal team to find out whether our legal team can assist you in preparing and executing your Will. Our professionals will ensure that the correct signing clauses are used, the right procedure is followed, and put additional protective measures in place if necessary.

If you would like to discuss Wills and Probate, contact our expert team here.

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