How to witness a will during lockdown

COVID-19 has forced many to rethink the way they validly witness a will.Witnessing_a_will_in_lockdown_Site.jpg

The outbreak of coronavirus earlier this year forced the UK into lockdown for the best part of four months. While many of the lockdown restrictions are beginning to be lifted, most are still socially distancing under the guidance of the government, meaning the simplest of tasks are still relatively difficult to carry out.

One of the simpler tasks that has been affected is that of witnessing a will. Unsurprisingly, many have been keen to get their affairs in order during this time, with will writing increasing by 76% since the start of lockdown. Social distancing, however, has provided a practical difficulty for many who need witnesses when signing their will.

Here, we discuss what the current requirements for witnessing a will are, some practical tips for witnessing a will whilst socially distancing, and news of a law change around witnessing wills.

 

The current requirements for witnessing a will

Under the Wills Act, two witnesses are required to be present for a will to be valid. A witness is there to confirm that the testator – the person who has written the will – is the same person who is signing the will. The witnesses also confirm that the signature isn’t forged, that the testator is not being coerced into signing the will, and that they have the mental capacity to sign and understand what they are signing.

The two witnesses then need to sign the will, along with the testator.

Witnesses must:

  • Be over 18 years of age
  • Not be a beneficiary of the will
  • Not be related to any beneficiaries by marriage or civil partnership

Without the presence and signature of two witnesses, the will is not valid or legally binding. The presence of witnesses can be defined by “being in the line of sight of each other during the signing process”.

 

Advice for those shielding and socially distancing

This clearly has some implications for those who are classed as extremely vulnerable and are shielding. Having said this, there are a few ways to overcome this potential problem.

Below we list some things to avoid when figuring out how to witness a will, along with some things to consider.

 

Do not use electronic signatures

The law allows electronic signatures for certain deeds and other forms of contracts. They are not, however, valid for witnessing a will.

 

Do not sign in front of anyone who will inherit under the will

It is crucial that the witness is not due to inherit anything under the will.

 

Do not use counterparts of the will

Again, something which is acceptable in many forms of life but is not acceptable when witnessing a will is signing counterparts of a document. The testator and the two witnesses must all sign the same physical document – the original will.

If multiple copies of a will are required for keeping records it is much more beneficial to execute a single will first and then make copies after that.

 

Keeping socially distanced whilst wearing a mask and gloves

One of the key parts is that witnesses must be “in the line of sight” of the testator when it is signed. This can lead to some clever problem-solving.

One of the simpler options is for the testator to ask two neighbours to visit them and sign the will outside, either in the street or a front garden.

 

Witnessing a will through a window

The same theory applies to witnessing a will through a window, as long as the testator and witnesses are in the line of sight. This particular case law dates back to 1781 and involves a horse and carriage outside a window due to a hot office and an asthmatic witness.

As long as the testator can be seen through the window and the document can be seen as it is passed to them to sign without losing sight of it, then the will is valid. The same can also apply to having a line of sight over a garden fence.

 

 

Witnessing a will via video link

On July 25th 2020, the government announced a change to the 183-year old rules for the requirement of “presence” under the Wills Act 1837.  This temporary legislation will allow wills to be witnessed virtually via a video link in England and Wales.

The legislation will be backdated to apply to wills made since January 31st 2020, and is expected to remain in force until January 31st 2022. It is expected that the legislation will come into force in September 2020.

This now means that people will be able to use video platforms like Zoom and Skype to sign their wills in the “virtual” presence of two witnesses.

The government also published detailed guidance on the proposed legislation, including a step-by-step process for signing and witnessing a will by video link. Witnesses must be recorded and the recording must be stored electronically with the will.

The measure has been welcomed by many industry leaders such as STEP and the Law Society. However, Percy Hughes & Roberts advises caution with this method of witnessing. We believe witnessing a will via a video link should be a last resort. Much more clarity is needed on when witnessing by video is appropriate and what to do in exceptional circumstances.

 

How can Percy Hughes & Roberts help?

At Percy Hughes & Roberts, we understand the importance of having an up-to-date and valid will to avoid all of the headaches that your family may be put through after your death.

We have a team of expert will writing solicitors who are ready to help you start writing your will to combat any of these unwanted consequences.

If you need assistance or advice on witnessing a will whilst socially distancing, writing a will, making a change to a will, or simply want general advice, our Wirral Wills solicitors have a wealth of experience.

If you would like to contact one of our expert solicitors, you can do so by calling 0800 781 3894 or by completing the “Get in touch” form on this site.

 

Key Links 

Government Guidance on making a will using video-conferencing

Casson v. Dade (1781)