The problem - social distancing

Unsurprisingly there has been a surge in demand for updated wills in the last 3 weeks. We recognise our clients are advising in extraordinary times. 

The execution of a valid will requires the will to be signed in the presence of two witnesses, present at the same time. Currently, an acute problem. 

Practical difficulties  

A family member (including partner/spouse) who stands to benefit from the will cannot act as a witness. This will invalidate the legacy. 

At present* the accepted view appears to be that case law is clear- that live video link, E signing and other digital media is not a valid method of signing a will.

It is currently unclear if a person witnessing through a window is permissible and satisfies the Wills Act. 

Will the courts take a pragmatic view?

Whilst it would not be unforeseen for litigation over validity of wills made during the pandemic to follow, hopefully courts will take a pragmatic view. It is perhaps a improved alternative to have the wills/codicils signed rather than to remain intestate or with a valid will which does not reflect the Testator's current wishes. 

Should appropriate witnesses observe through the window then passed the will to sign, it would be prudent for them to make a contemporaneous note which records confidence of the Testator's signing of their own free will and that there was no evidence of coercion.

Signing can take place indoors or outdoors. This ensures other appropriate social distancing measures can be adopted. Videoing and resigning after the pandemic may be advisable in addition to keeping a central log of wills/codicils executed during the pandemic. This can also assist you with your professional indemnity renewal. 

Update

  • A shared view is that allowing solicitors to witness wills via video link would be the preferred emergency measure for the government. This would appear to provide adequate safeguards against abuse in the signing process. 
  • Emergency guidance for Scottish solicitors was issued on 25 March by the Law Society of Scotland, permitting the witnessing of wills by video-conference. While the Scottish law on wills differs expressively from England and wales, the industry hopes that similar guidance will be announced imminently.
  • *Firms are lobbying the government through various professional bodies for emergency changes to current requirements.

We are conscious that the landscape is changing. Should you have concerns regarding any issues relating to the above, or other issues which have arisen during the conduct of your professional business, please do not hesitate to contact your Claims Advocate or dedicated Account Executive to discuss further.