16.09.2020

The Coronavirus pandemic has prompted many to re-think and focus on different aspects of their life including financial planning. It has been reported that enquiries for Wills has increased by 76% since the start of the outbreak in the UK. https://www.devere-group.com/news/Demand-for-wills-up-76-percent-Coronavirus-collectively-focuses-minds.aspx

Unfortunately, the will making process in England and Wales has been affected by coronavirus and ‘lockdown’ since 23 March 2020.

Section 9 of the Wills Act 1837 states that no will is valid unless:

1. it is in writing, and signed by the testator, or by some other person in his/her presence and by his/her direction
2. it appears that the testator intended by his/her signature to give effect to the will
3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time
4. each witness either:
   1. attests and signs the will
   2. or acknowledges his/her signature in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary

The law also includes a number of other requirements i.e. the testator should have testamentary capacity and should be free of undue influence or pressure.

It is the requirement to have the signing of the will witnessed which has become tricky due to the pandemic.

In normal circumstances the witnesses need to be present physically alongside the testator and sign the Will at the same time. With the introduction of social distancing measures this has proven to be difficult, especially for the elderly or vulnerable clients that have been shielding during this pandemic.

To meet the demand for wills whilst adhering to government guidelines, many solicitors have had to find creative yet safe ways to make wills- some have been offering a drive by service in the office car park where documents have been passed between cars parked 2m apart!

Discussions have been taking place about the possibility of relaxing the rules around signing and witnessing of wills in light of the pandemic. Following the discussions, the Ministry of Justice has now confirmed that the Wills Act 1837 will be amended to allow for remote electronic witnessing with additional guidelines i.e. recording the event, retaining records, signing within 24 hours etc.

The change in law is to be backdated to 31st January 2020 and will apply to any wills executed from and including this date.  It is intended that the changes will be kept in place until 31st January 2022, or ‘as long as deemed necessary’.

Many welcome this change in the law as it helps those who have struggled to execute their wills safely during the pandemic. However, care still needs to be taken to ensure that all legal formalities are complied with.

The Ministry of Justice (MOJ) have stressed that: “the use of video technology should remain a last resort, and people must continue to arrange physical witnessing of wills where it is safe to do so.”

At Walker Solicitors our team have been working hard throughout the pandemic. Fee earners were working remotely and able to assist clients via video and telephone conferences. Since July 2020 we have been able to offer limited appointments to clients who have been unable to execute their Wills due to lack of witnesses.

Contact our private client department where our team of experts can help you make sure your Will is drafted in accordance to your instructions during these unprecedented times.

It is advisable to seek the assistance of a legal professional to review your existing Will or create a Will. Trying to make your own Will could lead to mistakes or lack of clarity meaning your Will could become invalid.

About the Author , Sabah Babar
Solicitor – Private Client
T: 01922 639080
E: sb@walkersolicitors.com