The news is dominated at the moment with the dreaded C word – COVID-19. Our TV screens, phones and newspapers are filled with the death count, panic buying and now “lockdown”. For many, being isolated or maintaining social distancing means that you may well be thinking about your future.
In fact, we now know this is the case as Will instructions have apparently risen by 30% since COVID -19 reached our shores, and the instructions flowing into Kingsley Napley’s Private Client department certainly back up this statistic.
However taking instructions are one thing, but what effect does
COVID -19 have on Will signings?
In order for your Will to be legally valid there are specific conditions which must be met when your Will is signed.
- The Will needs to be in writing.
- The Will needs to be signed by the person making the Will (the testator) in the presence of two independent witnesses (who must be present at the same time).
- The witnesses must each sign the Will in the presence of the testator.
The government’s guidance on isolation and social distancing does place us in a slight conundrum when considering how to validly sign your Will. So, now what?
Step 1 is not particularly difficult. The Will can either be handwritten or typed. We would recommend that in order to avoid complications post-death, the Will is typed, but if parchment and ink is your preference then provided the other formalities are met, this should not be a problem!
Steps 2 and 3 are where it becomes trickier. You must sign the Will in the presence of two witnesses who have to see you signing the Will. The witnesses must then each sign the Will in your presence. It is not necessary for the witnesses to be aware of the contents of the Will.
You may think this can be easily solved by having a spouse or children to witness the Will, but the witness cannot be a beneficiary of the Will or a close relative of a beneficiary. If one of them were to sign, they risk losing any legacy or inheritance left to them in the Will!
Electronic signatures have become more common place recently, but unfortunately they are still not acceptable for Will signings. There is no confirmation that e-signatures or video-witnessing will be accepted as sufficient execution of Wills (yet).
Traditionally, we would arrange for the testator and the witnesses to be in a room and the Will would be properly signed by all the parties. This is no longer possible.
We can send Wills to you for you to make arrangements for suitable witnesses to be present when you sign the Will whilst maintaining a safe distance so far as possible. The difficulty is assessing what a safe distance is (particularly if you are vulnerable and are self-isolating) and how to maintain it whilst ensuring you satisfy the requirements necessary to execute a valid will.
One suggestion could be a park bench with either of your witnesses lurking at the adjacent benches – they could see you witness your Will and then after a successful rotation they could each approach the park bench individually and have it witnessed. (Beware of the lockdown!)
Or, you could ask adjacent neighbours to witness and sign the Will from the safety of their own garden. Provided that you and each witness can see each other sign the Will, this would form valid execution (although admittedly if you have high fences, some acrobatics may be required).
Standing on your doorstep whilst your witnesses stand on the pavement is another option, but depending on how isolated you are required to be and the level of risk, there is of course the issue of transporting the Will (perhaps a well behaved pet can be utilised here).
Opposite sides of the same room would also be a possibility, but this of course depends on the size of the room and the vulnerability of the individuals involved.
There are various ways and means which can be used to ensure you execute a valid Will. COVID-19 may well have changed the world in a completely unprecedented way, but this should not stop you thinking about the future, planning and preparing and ensuring all the necessary documents are properly executed.
Our Private Client Department remains very much “open for business”.
About the authors
James Ward heads the Private Client team at Kingsley Napley and is tasked with overseeing the continued development of the private client offering for both existing and new clients of the firm. His objective is for the Private Client team to offer the highest quality legal, practical and commercial private client advice for both domestic and international families and individuals.
Diva Shah is an associate in our Private Client team. Diva acts for various clients including high net worth individuals, entrepreneurs, executors, trustees and individuals who lack mental capacity on a broad range of matters
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