The coronavirus and social distancing has raised many concerns on whether Wills are being validly executed during this epidemic. The Law Society are currently having discussions with the Ministry of Justice to review the Wills Act 1873, with focus being on the requirements for witnessing a Will.
Section 9 of the Wills Act 1873 lists the requirements for making a valid Will. Under this section it states that the Will must be signed by the testator (this is the person who has made the Will) and this signature must be acknowledged in the presence of two or more independent witnesses at the same time.
Having to maintain a 2 meter distance and following the rules of lockdown can be problematic in ensuring that the witnesses to a Will are still visually able to see the testator sign and a further issue arises with trying to find two independent witnesses, who are not benefiting under the Will, to sign as well.
Adjustments have been made to our procedures to allow us to follow the current lockdown rules by replacing face to face meetings with telephone consultations and virtual meetings, allowing us to continue taking Will instructions.
There are many different approaches that allow for us to ensure that the legal formalities with witnessing a Will are followed whilst also ensuring that the client remains safe throughout the whole process. Depending on the clients circumstances, this can range from us posting out the Will to the client with detailed instructions on signing and witnessing to us witnessing their Will through the window at their home whilst keeping a 2 meter distance at all times.
It’s important that this new favoured approach with getting Wills witnessed through windows, as seen in the old case law of Casson v Dade (1781), is carried out sufficiently whilst also ensuring that the witnesses can actually see the testator sign. This importance was demonstrated in Re Killick (1864) where the witnesses were across the landing to the Testator but they did not see them sign the Will so this was declared invalid. This case highlights the importance of ensuring the Wills Act 1873 is compiled with when Wills are witnessed across the landing/doorway as otherwise you could risk your Will being invalidated, meaning that the intestacy rules would apply and your wishes within the Will are not adhered to.
If you’re ever unsure we can help ease your peace of mind and assist you with making sure the legal formalities are met. We can help you avoid any potential misunderstandings within your Will and for greater peace of mind, we are also offering clients the chance to have a face to face meeting once lockdown has been lifted to go through their Wills again.
If you have any questions in relation to the above or if you would like to discuss creating a Will for yourself please ask to speak to a member of our Private Client department on 01702 338338.