The Covid 19 pandemic has meant that the word ‘presence’ in the Wills Act 1837 has become even more pivotal when signing and witnessing Wills. There has been some speculation in the press as to whether Wills can be signed and witnessed remotely for example through Skype. Although Scotland has now adopted this approach, England and Wales have not followed suit and the strict requirements under s.9 of the Wills Act 1837 still need to be adhered to.
At a time when Will enquiries are increasing, it is important that even more significance is placed on ensuring that Wills are not invalid due to signing and witnessing restrictions. We suggest 5 top tips to avoid making an invalid Will during these uncertain times:
1. Always seek Professional Advice
There are a number of important considerations when preparing a new Will. For example, who will benefit from your estate, who will be responsible for administering your estate and will there be any Inheritance Tax to pay and if so who is responsible for discharging the liability?
At Wellers Law Group we ensure we provide a personal service through our Weller’s Connect Wills Service ensuring all our Wills are tailored to individual circumstances. This enables us to prepare Wills remotely taking instructions by telephone or by video conferencing whilst always maintaining the best service for our clients.
2. Make all Necessary Amendments Prior to Signing
Once a draft will has been prepared and sent to you for approval, it is vital that you read through the draft document carefully to ensure it accurately reflects your wishes. Any changes required need to be made before you sign your Will.
If changes need to be made once your Will is finalised (but not yet signed) final amendments can be made by hand and initialled by all parties (you and your witnesses).
3. Execute the Will Safely and Correctly
Once you are happy with your final Will, it needs to be signed in the presence of two independent witnesses who are over the age of 18 in order to be legally valid.
It is not necessary for your Will to be witnessed by lawyers, however it should not be witnessed by a beneficiary or a member of the family. Both witnesses need to be independent of you.
Under current circumstances, arranging for your Will to be witnessed can prove challenging in light of the government’s current advice on self-isolation and social distancing. I would recommend the following approach to ensure your Will is executed safely:-
(a) Contact two neighbours and ask if they are willing to witness you sign your Will from a 2 metre distance. Agree an appropriate date and time to meet in front of your home. I would suggest that you all wear a mask and gloves for protection and use separate pens for signing.
(b) Maintain a safe 2 metre distance between you. You also need to make sure that you have a clear view of each other and the Will throughout the signing process.
(c) When you are ready, sign your Will where indicated using your usual signature.
(d) Leave the Will on a suitable surface for example a garden table, car bonnet or a wall and walk away. The first witness must then sign the Will with their own pen where indicated and print their full name, address and occupation below their signature. They must sign in the view of both you and the second witness.
(e) The first witness can then walk away and the second witness can sign in the same way again using their own pen, and again in the view of both you and the first witness (whilst always adhering to social distancing measures).
(f) Once you and your witnesses have signed, you can collect your Will and return to your home.
It is important that you are all physically present when signing the Will and it is not witnessed through a window, as this could be challenged at a later date.
4. Check your Will Again
Once your Will has been signed it is important to check it once again carefully and ensure it has been correctly executed and dated.
If possible, a scanned copy should be sent to us so that we can also check that the Will has been executed correctly.
5. Safe Storage
If not already bound, staple your signed Will once in the top left-hand corner. Once stapled, do not remove the staple.
Store your Will safely and when it is appropriate please send your original Will to us for safe-keeping.
The above can prove to be impractical and may not be appropriate in all circumstances, however this strategy can be used if managed effectively whilst always adhering to the Government’s social distancing rules.
The case for reforming the law in relation to the execution of Wills, particularly within the Covid 19 climate, remains under review but the Government has confirmed that any review to the current law needs to be balanced against the need to protect the elderly and vulnerable against undue influence and fraud.
If you are interested in arranging a Will please contact Dawn Pearce, Levina Khanna or Karen Ball on 01372 750100.