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Covid-19 has forced many industries to make significant changes to the way that they interact with clients, the legal sector being no different.

Steeped in tradition, the law in relation to Wills has seen little change for nearly 200 hundred years.

The Current Position in Relation to Executing a Valid Will

As a reminder; in England & Wales, for a Will to be valid (Section 9 (a) of the Wills Act 1837), it must be;

• in writing,
• signed by the person making the will (testator), or by another person in their presence and by their direction; and
• in the presence of two or more independent witnesses present at the same time, and who must attest and sign the will.

Complying with the above formalities clearly goes against the current government policy of social distancing. In an attempt to ensure their affairs are in order during this unprecedented time in our history people are often having to meet outside their houses (keeping at least two metres apart) to deal with the signing of their Will, and even witnessing signatures from opposite sides of a window.

But what about those that are either too vulnerable or not able to find two independent witnesses?

As a last resort, and only in instances where there is no possible way for someone to prepare a validly executed Will, a letter of wishes could be prepared and signed. A letter would not be legally binding but would give some guidance to family members in the hope that they would follow your wishes in the event of your death.

What About Other Countries?

Other countries (but not yet England & Wales) have made changes to their legislation to enable people to execute their Wills without such strict formalities including Australia, Dubai, New Zealand, Jersey and various States in the USA (such as Tennessee) enabling witnesses to be present via video link (provided other formalities are adhered to).

Recent guidance from Law Society of Scotland announced that it has “temporarily amended its guidance on witnessing the signing of a will to allow the lawyer to act as the witness via video conference, so long as they are not appointed as ‘executor’”.

Countries such as France and Germany already have the ability to make a Will without the same formalities as England & Wales.

Should the UK Government Make Changes to Existing Legislation?  

In England and Wales, under the Wills Act 1837 (Section 11) it is possible “that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate' without any formalities”; provided the testator intended deliberately to give expression to their wishes in the event of death; asking the question: Why can’t this be applied in the current situation?

Usually, the benefits of the Section 9 formalities for executing valid Will far outweigh the risks; by ensuring that the testator has the capacity to understand the Will, that they are not being put under duress and that their signature is not being forged.

The difficulty is that we may now be in a position that sees those needing to execute their last Will and testament unable to do so, thereby changing the status quo.

Bearing in mind the proactive approach taken in other jurisdictions, whether the UK is likely to follow suit is yet to be seen. The UK government is still considering various options available but thus far have not announced any changes to the existing law.

Many of the countries that have made changes to the law, such as introducing the ability to use video link as a way to witness Will signings have also added other safeguards in an attempt to protect against fraud and duress such as the requirement that no-one else must be in the same room as the testator when signing or requiring that one of the video link witnesses must be a solicitor.

It is likely that if the UK does make any changes to the current formalities, that these shall only be temporary such as seen with Jersey setting an end date of 30 September 2020 or New Zealand setting out that the changes shall only apply for the period in which the country is in the grip of Covid-19.

Whilst the UK government considers the options available, all formalities must be observed in order to execute a valid Will.

Contact our Private Client Solicitors, Enfield & London

If you would like to make changes to your Will or have any queries about the Will making process please contact Toby Pilcher on 01763 241 261.