It is difficult to both execute a Will in front of two independent witnesses and comply with social distancing requirements aimed at limiting the spread of Coronavirus, writes John Melville-Smith
Anecdotal evidence suggests that, unsurprisingly, demand for Will-writing services has surged by as much as 76 per cent of late. As with all legal services, much of the work can be done on the telephone, by email, Zoom, or Skype.
In the case of Wills, the problem arises when the document comes to be executed. The Wills Act 1837, which still governs the formalities for making Wills, provides (so far as is relevant) that a Will is invalid unless:
- It is in writing, and signed by the testator, or by some other person in his presence and by his direction (the latter covering, for example, a blind, or disabled testator); and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, who either sign the will or acknowledge their signatures on it in the testator’s presence, but not necessarily in the presence of any other witness.
This is convoluted and, typically, when a Will is executed, the testator signs in the physical presence of the two witnesses and they then sign in his or her presence. All three are together for the entire process. It avoids any issues with the interpretation of the Act.
If a witness, or the spouse of a witness, is a beneficiary under the Will, the Will is valid but the gift to that person fails, which rules out most Wills being witnessed by the spouse or children of the testator.
There were good reasons for these provisions in 1837 and there still are today. Wills can be forged. Elderly people can be coerced or be of questionable capacity. The need for independent witnesses is therefore obvious.
The current problem, however, is that it is difficult to both execute a Will in front of two independent witnesses and comply with social distancing requirements aimed at limiting the spread of Coronavirus. Elderly or unwell people are more likely to want to make a Will. They are the very ones most at risk. Choose your witnesses badly and the act of making a Will could produce, prematurely, the outcome it is intended to provide for!
The problem has led to inevitable calls for emergency legislation to amend, or suspend for the time being, the current legal requirements. Nothing has yet happened, so how can we work with the law as it stands?
Suggestions have included allowing testators to sign their Will while being watched by the witnesses on a videocall. They would then each sign an identical counterpart, while the testator watched them do so, and the three otherwise identical documents would be returned to the solicitor, who would ideally have watched the procedure (indeed possibly be acting as one of the two witnesses).
Alternatively, a testator could sign the Will and send it to the witnesses by post, ideally a cohabiting couple given the current restrictions. The testator would then acknowledge his signature during a subsequent videocall (with the solicitor involved too) and the witnesses would then sign while the testator watched them do so.
It is not difficult to see how such a Will could be challenged – are these scenarios consistent with the necessity for the witnesses to be “present” at the same time as the testator? Visually, probably. Physically, clearly not, even if they were in adjacent rooms.
Another option would be for the testator to stand at his or her front window and execute the Will while the witnesses were present in front of the house, watching the signing. Alternatively, the process could take place in the garden or in a local park. The witnesses would then sign as such, naturally while remaining at least two metres from each other and the testator the whole time.
Care would have to be taken to prevent possible infection arising from all using the same pen, or conceivably it being transferred on the document itself. This would be compliant with the law and social distancing guidelines (just) but it is, to say the least, unsatisfactory and may be totally impractical in the case of a very unwell or enfeebled testator.
There are currently talks between the Ministry of Justice and the Law Society about a major overhaul of probate legislation in due course and it is likely that, at some stage, the 1837 laws will be brought up to date and int the age of video-conferencing, electronic signatures and similar.
Pending that, it is to be hoped that Judges will, when called upon as they are likely to be, take a pragmatic view of any disputed Wills that fall to be determined as to their validity when it is entirely clear what the testator wanted, but equally so that the law had to be stretched a little to provide for it.