Executing Your Will At The Time Of Coronavirus

Frances CoulsonSenior & Managing Partner, Head of Litigation & Insolvency, Moon Beever

Author – Charlotte Pollard, Associate

This week’s Will enquiries have included:

  • ’Can our witnesses stand on the other side of our garden wall?’ 
  • Answer: s9 of the Wills Act 1837 (“the Act”) sets out the formalities for signing Wills. There are no distance restrictions but how high is the wall and can you see over it?  The testator’s signature is to be made or acknowledged in the presence of at least 2 witnesses present at the same time, and each witness must sign the will, or acknowledge their signature, in the presence of the testator – but not necessarily in the presence of any other witness.  Common sense dictates that at this time, you use your own pen and you wash your hands following the signing. 
  • ’Can you take instructions by phone for my friend’s uncle who has symptoms?’ 
  • Answer: If we can satisfy money laundering formalities – (ie. are they a current client or has anyone previously certified recent ID) – we can have an initial meeting for Will instructions by video call such as Skype, Facetime or Zoom.

To date where possible we have always advised that we attend a client to take instructions and we witness the execution of a Will (however case law on the duty of professional advisors supervising execution is not consistent). If a testator does not accept the advice or is too unwell to attend or be attended to sign their Will, then clear instructions should be sent to the testator for valid execution and the advisor should check the signed Will.

The Law Society Gazette of 27 March 2020 sets out the Law Society and the Ministry of Justice’s urgent consideration of an overhaul of the Act ‘to denormalise the signing of Wills’ in the midst of the pandemic.  It is confirmed that amongst options are an Australian approach where judges are given discretion to decide what constitutes a valid Will, a European style of hand written Wills without requirement for witnesses, or perhaps an electronic witnessing regime.

Practitioners are familiar with s11 of the Act which removes formalities for soldiers, sailors, airmen on active service and seaman at sea, known as privileged Wills (which need not be in writing, can be made orally and by those under 18 years).  Even with privileged Wills, evidence is required to satisfy the probate registry of the terms and validity.

Whether or not any overhaul enacted now will be revoked following the crisis, it is unclear.  One issue is clear.  If formalities are not relaxed quickly, we will see an increase in homemade Wills during this crisis, creating future opportunities for suspicion followed by challenge and expensive, lengthy litigation.

During this time of isolation and social distancing, a 15 minute complimentary video call with a qualified private client practitioner to establish whether we are able to take instructions should assist anxiety and alleviate the risk of future challenges as to whether:

  • the testator had the requisite mental capacity to 1) provide instructions and 2) execute their Will? If they had mental capacity when they gave instructions but not at the time of execution, the Will could still be valid under the rule in Parker v Felgate (1883);
  • the testator knew and approved the contents of their Will;
  • anyone has unduly influenced the testator into making their Will.