Witnessing Wills during the Coronavirus pandemic

Could a 183-year-old Law be amended? How do we ensure Wills are valid in the meantime?

As many clients are tense to have their Wills updated (or in some cases drawn up) to ensure that their Estate Planning matters are organised during this difficult time, we at Jamieson Alexander are offering video and telephone meetings to discuss Estate Planning matters. However, all Lawyers are still faced with the hurdle of satisfying the relevant Laws for the valid creation of a Will, with the main hurdle being the valid execution of the Will.

The (questionably outdated) Wills Act 1837 provides strict rules surrounding the valid execution of a Will, known as attestation. The rule is, broadly, that the Will must (1) be signed by the Testator (2) in the presence of two independent witnesses and (3) the two witnesses must sign in the presence of the Testator.

For many of our clients this is now proving difficult due to self-isolation. Many are now self-isolating alone and those that are not are likely to be with their families, who are often those entitled to benefit from the Estate and who cannot therefore be independent witnesses to the Will.

It’s important to note that the effect of this, i.e. if a beneficiary witnesses a Will, is that they lose their entitlement under the Will.  As such, them doing so is simply not a practical solution and may in fact frustrate the intention of the Testator absolutely.

Thankfully, the Law Society and Ministry of Justice are discussing ways in which they could potentially relax or change the current rules. Consideration is being given to providing judges with more flexibility when deciding what constitutes a valid Will; allowing for the execution of Wills without witnesses or a process where Wills could be witnessed electronically, i.e. by Skype etc. It is still unclear on whether any potential new legislation would be permanent or revoked after the pandemic, however, it’s another area COVID-19 could greatly impact on English Law.

With the execution and witnessing of a Will having such a great impact on its validity, along with the benefits of witness evidence in the case of mental incapacity and undue influence, whatever these changes may be, they are sure to produce some very interesting cases in the future.

Until further guidance is provided, we must as far as possible ensure clients are executing their Wills in accordance with the current Laws and in accordance with the Government guidance on COVID-19. It’s clear that each client’s situation must be assessed on a case-by-case basis and appropriate advice given to ensure their wishes are validly carried out.

As a firm, we are offering clients (both new and existing) telephone and video calls to discuss any concerns, and are staying up to date with the rapidly changing situation and a guidance issued by the relevant bodies. We are also helping to supervise any remote attestation (i.e. the 'over the garden fence' type) and are keeping records on behalf of clients of measures we implement, to ensure the Will remains valid in the future.  In short, we are doing everything in our power to ensure that our clients' Wills are created, updated, and properly executed with full effectiveness and the minimum of hassle... even with Covid-19!

If you have a question about making a Will, either related to Covid-19 or not, please contact Anna Lochhead on 0330 0974 390 or by email anna@jamiesonalexander.co.uk


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