Social distancing, Covid-19 and why this should not prevent you from preparing your will

The Covid-19 pandemic has presented a unique conundrum; whilst the demand for will preparation services has increased dramatically in the last few weeks, with some authorities reporting a rise of over 70%, the Government requirements for social distancing have made the usual formalities for executing a will much more difficult to achieve.

The Legal Requirements

The requirements for a will to be in writing and signed by the testator in the presence of two independent witnesses (who are present in the same room at the same time) derive from The Wills Act 1837 (ss.1 and 9). Although this statute was brought into force in the same year that Queen Victoria took to the throne, it remains good law. A valid will must therefore be in hard copy form and cannot be a digital document or signed electronically.

This is at odds with other areas of law which have developed to accept electronic signatures and documents as valid, a notable example being digital signatures which are now accepted for deeds following the Law Commission’s report on electronic execution in 2019. However, these arguably outdated requirements surrounding will preparation and execution are an effective and necessary means in guarding against the risk of a will being signed under duress or undue influence. Indeed, will disputes typically arise following the testator’s death; when they can no longer give evidence of the circumstances surrounding the signing of the will to persuade a court of its validity (or lack of). The same risk is of course less for other deeds and contracts.

As such, this is not the time for new digital-friendly legislation which would of course present a multitude of other complexities in ensuring the validity of wills. Instead practitioners need to find new ways to negotiate themselves safely around the familiar statutory territory to ensure their clients can prepare and update their wills during these uncertain times.

Preparing a Will during Covid-19

Even though the legislation is old, the approach to will preparation does not have to be. Thankfully, although face to face meetings with clients may not currently be possible or indeed advisable, advances in technology allows solicitors to meet clients through video conferencing, which can often be a preferred mode of communication to a telephone call.

Solicitors can therefore still take instructions swiftly through remote means and prepare a draft will at short notice for their clients.

Executing a Valid Will Safely during Covid-19

At the time of writing, the more problematic part of the will preparation process is undoubtedly at the end when it comes to the will being signed and witnessed.

The majority of testators will currently be residing in their family home during this lockdown, the inhabitants of which will likely feature as beneficiaries of their will. Section 15 of The Wills Act 1837 states that if a beneficiary witnesses the signing of the will, the gifts to that beneficiary within that will are rendered void (though the will itself can be valid). This presents a unique difficulty for testators who live with their family who need to find independent witnesses during this lockdown.

Similarly, those who want to prepare a new or updated will and live alone will also struggle to find appropriate witnesses who can witness the signing of their will in accordance with the government regulations.

In answer to these difficulties, a common suggestion is to utilise one’s neighbours, an example being that a will signing could take place on the doorstep with two neighbours (at a two metre distance from each other and the testator) observing. Alternatively, the testator and witnesses could meet in an open public space at safe distances to effect the execution of the will.

Keeping our Clients and their Testamentary Wishes Safe

A further consideration is that of the more vulnerable clients who require will writing services. Even if independent witnesses can be found in one’s home, extra care must be taken for vulnerable testators or those who are in self-isolation. A large room or garden may therefore be the ideal setting for a will to be signed in order to observe the government guidelines whilst simultaneously ensuring a client’s safety.

Even when away from the office and working remotely, Vardags is wholly committed to continuing to provide it services to its clients. We are closely monitoring the Government Guidance to ensure that we can carry delivering our will preparation service safely and effectively.

During this strange period of lockdown, a will can still be effectively drafted, signed and witnessed, just by less conventional means. Testators should therefore explore the options available and not be deterred from preparing their will as the process is still possible, albeit with a new, social distancing compliant, approach.