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Executing a will during lockdown - an in-depth look

A will which is not executed correctly is not a will and does not work.  

Covid-19 has prompted many people to consider drafting a will.  This is challenging but possible under lockdown.  It is however essential to ensure that a will (or codicil) is executed validly against the background of lockdown and social distancing.

The formal requirements for a valid Will are specific and inflexible. They have not been relaxed as a result of Covid-19.  What may appear to be a minor breach of those requirements will render a will invalid.  That in turn means that the would-be testator dies intestate, or their existing will remains in place if it is not otherwise revoked.

The formal requirements for executing a will are contained in the Wills Act 1837.  This is from a time when modern technology was unimaginable.  It was also a time when the social dynamic (including literacy, the distribution of wealth and mortality) was very different.

Wills are unlike most other sorts of legal document.  Many contracts, for example, have no formal requirements whatever, and can often be oral.  A will has to be a physical document – it can be written on the back of an envelope - but it is generally agreed it cannot be electronic.  Critically, the testator must sign in the presence of two independent witnesses, who attest and sign the will in the presence of the testator. A witness to a will (or their spouse or civil partner) can never receive any benefit under it.

A testator can direct somebody to sign on their behalf. This is a very helpful provision which may assist particularly vulnerable people execute a will without having any contact with the outside world. It is possible for a testator (in their house) to direct a witness (standing on the other side of a window) to sign the will on his or her behalf, and then for the two witnesses to sign in the testator’s presence. In this way one witness will have signed both as testator (at the testator’s direction) and as a witness. Given the scope for abuse, it will be really important to keep a very careful record (preferably a video record) of this process.

A beneficiary under a will can witness a codicil (which amends a will), provided that they do not benefit under that codicil. For example if a testator has signed a will leaving everything to Janice, Marjorie and Philippa, his daughters, but wants to leave £20,000 to his carer, he can execute a codicil adding this gift to his will: Janice and Marjorie can act as the witnesses to the codicil (even though they could not have been witnesses to the will).

Why the need for two witnesses?  There is no magic in the number.  In Scotland, a single witness suffices.  In Austria, three are generally needed.  The principle however is the need to recognise two competing aims.  On the one hand, people should be able to testate freely without being tripped up by archaic formality.  On the other, it is important to be able to prove that a will is actually the will of the testator, at a time when by definition the testator is unable to confirm this.  The need to prevent fraud has always been a key feature of the law of wills.  Witnessing also helps lend a sense of formality to the process and focus the testator’s mind on proper drafting.  But the main aim of witnessing is to protect the testator.

It is this very point that makes wills harder to execute during the lockdown.  Testators will often wish to benefit family members and, as a result, those family members cannot be witnesses.  Solicitors acting in connection with wills are key workers and may therefore act as witnesses.  Alternatively, providing that social distancing and appropriate precautions are carried out, immediate neighbours may be prepared to act as witnesses.

In these cases, the question of what it means actually to witness a will comes into sharp focus.  The practicalities of social isolation require us to consider what it means to witness a document in someone’s “presence” – and brings up highly nuanced questions addressed in a mass of very old caselaw.  For example, is it acceptable for the witnesses to see the testator sign over skype or facetime?  What happens if the testator, having signed, goes away to make themselves a cup of tea while the witnesses sign? Can the testator’s signature be witnessed through a window?

While there may (possibly) be some debate about how flexible the law is here – or whether the law should be expanded to allow for virtual witnessing – in practice, it is important to put the fact of witnessing beyond doubt.  Much can go wrong with an unsupervised signing.  The witnesses and testator should be in each other’s physical presence, and actually see each other sign (or acknowledge an existing signature).  This could be done through a window, or over a hedge (again, taking suitable precautions).  But it is not acceptable for the testator to retreat to a different room while the witnesses sign. We think it is very unlikely that a court would accept that witnessing over a video link would work. It should not be attempted.

It is not impossible that disappointed beneficiaries might seek to challenge wills executed under lockdown on the basis of inadequate witnessing.   It is best practice to keep a careful note of the signing “ceremony”.  It cannot hurt to re-execute the will following the suspension of lockdown.

This may all seem extremely pedantic.  Should these rules be relaxed, particularly during a time of national emergency?  The rules are already relaxed for limited classes of people who can make so-called “privileged” wills – notably soldiers in actual military service.  The courts have favoured an expansive interpretation of this, but this will not help front-line civilian NHS staff: they are not in the military and, although they are working in extraordinary circumstances, they are not in actual military service.  That would require an amendment to the law.

This in turn begs the question as to whether these venerable rules (which in turn derive from highly formal requirements in Roman law) are still fit for purpose.  Should video-witnessing be allowed?  A number of jurisdictions, including Jersey and New Zealand, have brought in new rules in response to the pandemic which allow for video witnessing – albeit rules which still require a high degree of formality. At the time of writing, the Ministry of Justice has confirmed its view that this is a delicate area of law and there are no current plans to change it.  It will however consider all options and keep everything under review during the pandemic.

It is quite true that this is a delicate area of law.  The Law Commission’s 2017 consultation paper, “Making a Will”, is 284 pages long and covers a very wide range of issues, including formality, capacity and protecting vulnerable testators.  The law is undoubtedly in need of reform, regardless of the pandemic.  Many argue that a relaxation of the rules is justified so that testators are not put off from making wills because of the difficulty in doing so under lockdown.  That is true.  Yet it is also sadly true that many people will be especially vulnerable during lockdown.  Ensuring that they are protected is more important than ever.

For the time being, it is essential to adhere scrupulously to the 1837 formalities.  And while much of this has a slightly morbid tenor, it never hurts to remember that, done well, executing a will can be a positive and life-affirming process.  Whilst it is inevitably a “remembrancer of death”, the truth is that for most people, a will contains the biggest gift that they will make. 

This article refers to the law in force in England & Wales at the time of writing.

 

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