News

The emergence and spread of the Covid-19 virus has drastically changed the way society operates in the medium term. The majority of us are now only leaving our homes to buy food and to take our daily portion of exercise.

This has had a great impact on the way that we all work, with the vast majority of those in the legal profession (including all staff at Sinclair Gibson) following the government’s present advice and working from home wherever possible. Although at times inconvenient, for most lawyers this is a situation to which they can adapt without it having a material impact on their work.

However, for those who specialise in the preparation and drafting of wills, this medium term change has the potential to have longer-term consequences.

The usual position

Solicitors would traditionally meet their clients face-to-face to take thorough instructions of the client’s testamentary wishes, prepare the will, and then invite the client either to attend the office to execute their will or visit the client at their home.

It is now becoming more common for solicitors to take instructions over the telephone or electronically. In the present circumstances of social distancing, solicitors can continue to take instructions in this way.

However, social distancing and self-isolation measures are inevitably having an effect on the process of executing wills.

The formalities required for a will to be validly executed are set out in section 9 of the Wills Act 1837 (the ‘Act’). In summary, the Act states that a will shall be validly executed if:

1 it is in writing and signed by the person making the will (or by someone else in the testator’s presence and at their direction); and

2 it is made or acknowledged in the presence of two independent witnesses who sign the will themselves in the presence of the testator (but not necessarily in each other’s presence).

This generally requires at least three individuals to be present in the same room.

It is important to remember that an individual who witnesses a will cannot then benefit from it (and neither could the spouse of such an individual), so if a testator wishes their spouse, child or other family member to benefit in any way from their will they should under no circumstances act as witnesses.

These factors combined make it very difficult, in the present circumstances, to arrange for a will to be validly executed.

Many individuals who wish to make or update wills as part of their succession planning, particularly at a time of uncertainty when they may be especially concerned about their testamentary affairs, are understandably uneasy about how long this situation will continue and how long it might be before they can execute a new will.

Guidance

The government is yet to issue clear guidance on what measures may be put in place to facilitate the execution of valid wills during the current unprecedented circumstances, though we understand that such measures are being considered.

At present, although electronic signatures have been accepted as valid for many legal documents, this is not the case for wills.

Further, individuals are not currently permitted to witness a will via electronic means such as video conferencing facilities. A relaxation of the rules to allow witnesses to play their part remotely might be a measure that the government could introduce for a limited time to facilitate proper execution.

The law does envisage limited situations where it might not be practically possible to comply with the usual strict requirements to execute a will validly. Under section 11 of the Act, soldiers and sailors on ‘active military service’ are exempt from the execution requirements set out in the Act and may dispose of their personal estate by less formal means (a handwritten letter, for example). While there are understandable concerns about introducing such drastic measures now, given the risks of fraud and undue influence, it is an option that the government may consider.

Unless and until the government issues guidance, or indeed emergency legislation, to clarify the position, individuals might consider asking neighbours to be witnesses to their wills – it is often possible to arrange for this to take place at a safe distance, provided that the neighbours can see the testator sign their will. Alternatively, those within the testator’s household could be asked to act as witnesses (but being sure to bear in mind the restrictions on witnesses receiving a benefit which are set out above).

If you have any specific concerns about your existing will, or questions about making a new one, please contact the a member of Sinclair Gibson’s Private Client team on 020 7242 9700, who would be very happy to discuss your concerns with you.

Please note that this article is for informational purposes only. It does not constitute legal advice, and should not be relied upon as such.