At the current time, people are struggling to find certainty in their lives. Fortunately, you can still ensure you have a valid and up to date Will, providing certainty in your future affairs.
Why make a Will now?
The Coronavirus has encouraged individuals to consider their future arrangements in an unprecedented period of history. The lockdown itself has provided families with the thinking time and reflection to seriously consider putting arrangements in place.
We would like to reassure people that making a Will is still possible, and we are here to guide you through this process.
The Coronavirus poses certain problems to the usual procedure of making a Will. We have developed strategies and solutions to overcome these, whilst still adhering to social distancing measures and maintaining safety, which is our absolute priority.
How can I instruct a solicitor on the content of my Will?
Many clients prefer giving face-to-face instructions. the government’s current advice means this is seldom possible. We are taking instructions over the phone which seems preferable to the elderly. Video conferencing via the likes of Zoom and face-to-face calls via Facetime and Skype are all suitable methods to take instructions in this period.
How can I validly execute my Will?
Once the Will has been drafted and approved by the client, the Will needs to be validly executed. The Will needs to be signed by the Will-maker (Testator), in the presence of two independent witnesses who also sign the Will. Clearly, getting the Will witnessed is a challenge at this time.
We do believe there are ways to validly execute the Will, whilst still adhering to social distancing measures. In the present circumstances, neighbours are likely to be the best option to witness the Will.
Our suggestion is as follows:
- Ensure all three individuals are wearing gloves and are two metres apart at all times
- Place the Will on a clean flat surface
- The Testator should then sign the Will, followed by each of the two witnesses
- Each individual step forward separately to sign the Will in turn
If you are concerned this type of method is not available to you, please get in touch. We can discuss what is best on an individual basis.
The Law Society has also recommended the signing process be recorded in file notes, or via video, to ensure there can be no question the Will was validly executed.
What legal point is at issue?
The question at issue is what validly constitutes witnessing a Will. The Law Commission’s consultation on the Law of Wills in 2017 confirmed the witnesses have to be “physically present” to follow s 9 of the Wills Act 1837. Whilst the old case of Casson v Dade (1781) suggests a Will can be witnessed through a glass window, this should not be relied upon as it raises some ambiguity.
We suggest that the witnesses should still be able to directly see the Will being signed by the Testator. The Testator and Witnesses should therefore be in the proximity of each other whilst still remaining a safe distance from each other (at least 2 metres).
We understand the Law Society are currently in discussions with the Ministry of Justice regarding the formalities of Will making during this time. But until any changes come, Will execution should follow the current Law in place.
In such unprecedented times, CLC are committed to protecting people’s future arrangements.