Why and how you should make a Will during Covid-19

If the Coronavirus has taught us one of many things, it’s that you never know what is around the corner in life. Indeed, none of us could have seen this coming, and why would we? It’s not healthy to predict unpredictable and unforeseen events, and instead we rightly choose to live each day for the moment. We can’t ponder on the future too much, but what we can do is secure our future arrangements should the uncontrollable occur. A Will is a rare tool in life which allows you to control your future arrangements. We are committed to using this tool to help you secure your desired future arrangements, and we are here to guide you through this process during the Coronavirus. See below how we propose to make Wills during Covid-19.

The Coronavirus poses certain problems to the usual procedure of making a Will. We have developed solutions to overcome these, whilst still adhering to social distancing measures and maintaining safety, which is our absolute priority. Making a will is largely a three stage process:

  1. Instructing a solicitor on the content of the Will;
  2. Drafting the Will and ensuring this represents the client’s wishes as precisely as possible; and
  3. Executing the Will.

1. 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.

2. Drafting the Will

Once we have drafted a Will, we will send it to you for approval. As in stage one, we can discuss the Will over the phone, email or through video conferencing. This stage ensures the Will carries out the exact wishes of the client.

3. 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. We understand the importance of a Will and will therefore adapt to ensure you can make a valid Will.

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 in discussions with the Ministry of Justice regarding the formalities of Will making during this time. But until any changes come, Will execution should take place within the parameters of the existing requirements, as outlined in this article.

In such unprecedented times, Carter Lemon Camerons are committed to protecting people’s future arrangements. Please get in touch today if you want our guidance.