Witnessing a Will and Social Distancing
The threat of coronavirus has seen a significant increase in the number of people making a new Will or reviewing their Will to ensure that their affairs are in order. In this article we look at how the signing of Wills can be witnessed in this period of social distancing.
The law surrounding the Execution of Wills has been in place since 1837 and is very precise. The law requires that, as well as the person signing the Will (the Testator), there should be two independent witnesses present. The two witnesses should (at the same time) be in the presence of the Testator when the Will is signed and the witnesses then sign in the presence of the Testator and each other. The rules may be ancient but they do give a level of protection to the Testator and the beneficiaries who would inherit. For example, if a spouse of a beneficiary witnesses the Will, the Will itself will not be invalidated but the beneficiary will not get their gift under the Will. Also, an impartial witness may be able to confirm that the Testator was not coerced/forced to sign their Will.
The Scottish Law Society has issued some guidance suggesting that the witnessing can be done using video technology with the lawyer watching the client sign the Will and that can then be sent to the lawyer for witnessing. However, this may be somewhat restricted as a practical solution when most of us are working from home and not all clients will have access to the technology.
In this time of social distancing and isolation it is going to be much more difficult to meet these conditions. For various reasons, family members are generally not independent and should not act as witnesses. Whilst we as lawyers would normally offer that service to our clients, we too are staying at home and having to keep a distance.
There are some interesting suggestions being discussed on legal forums, including the general introduction of the law surrounding ‘privileged’ Wills. The law on privileged Wills currently only applies to service personnel and allows those on active service to make a Will which does not need to meet the strict requirements which govern other Wills. Other options have included adopting the more relaxed requirements practiced in some of the Commonwealth nations. Another possible solution is relaxing the rules on the number of witnesses and allowing one witness instead of two. Given the anxiety many feel in the current climate, clear direction is needed soon on whether there will be any relaxation of the current law and discussions between the Law Society and Ministry of Justice are ongoing. The Society of Trust and Estate Practitioners and Solicitors for the Elderly are working closely with the Law Society and MoJ in helping to come to a workable solution.
Relaxation of the current rules may come with risks and we need to wait and see if any measures that which might be introduced are temporary (for the duration of the current crisis) or whether they will be longer term. So far there has been no decision or emergency legislation to amend the current rules but we will update you as soon as we hear. It is not
We are already using virtual signatures on other deeds and these are accepted by the Court however, making any decisions in a crisis may mean that important factors are overlooked. After almost 200 years this is an area of law which is crying out for modernisation but caution needs to be exercised to ensure the protections which are already in place are maintained.
Even though our offices are physically closed to clients, we are doing what we can to help our clients to put their Wills in place. We can have virtual meetings via Facetime, Skype and Whatsapp and where possible we will send all documents and correspondence by email.
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