Signing Wills during Lockdown

  • Posted

Since my last article on the issues surrounding Will signing in a time of social distancing the BBC has reported that we are becoming rather imaginative in how to ensure compliance with the legal formalities.

https://www.bbc.co.uk/news/business-52215141

Briefly, the legal requirements for signing a Will are that the person making the Will (Testator) has to sign the Will in the presence of two independent witnesses, who should sign the Will as witnesses in the presence of the Testator and each other. Before lockdown we would see the client in our office, we would sit around a table and everyone would sign as required. The result would be a validly executed Will.

Since lockdown we cannot provide that service and we are having to rely on clients following our instructions. This is not easy given that we are not allowed to spend time with anyone other than our own family – and when we are near other people we must keep at least 2 metres apart.  How do you comply with the social distancing and legal requirements? As I mentioned above the BBC have reported some interesting alternatives to sitting around a table – a car bonnet has been used as a surface for signing, neighbours have been looking over each others’ fences. Wills have even been witnessed through open windows with the document passing between the parties. The phrase ‘necessity is the mother of invention’ was never more true.

The Ministry of Justice has said there is unlikely to be any emergency legislation to amend or relax the current rules. Although the current rules are almost 200 years old and may be ripe for review, we need to protect those more vulnerable individuals to ensure (so far as we can) against undue influence and fraud.

Social distancing is not only an issue for signing Wills but it is also an issue in taking Will instructions. We usually need to see a client face to face to take their instructions  – now we are using technology to have ‘virtual’ meetings instead; we are emailing clients draft Wills for approval and emailing or posting clients their finalised Wills with detailed instructions on signing and witnessing.  If the client is not sure what to do they can always call us for guidance and if they have a talented member of the family, we can attend the will signing virtually via Whatsapp or MS Teams. However, this does not amount to “presence” so we cannot be a witness. We can work around most of the practical challenges. One size does not fit all and we will adapt where we need to for each individual. If signing on a car bonnet on the drive works for the client  – that is good enough for us (as long as the legal requirements are complied with of course).

However, for many, making a Will is not a priority until something happens to them or a close relative. Currently, we are unable to visit hospitals or care homes to take instructions for emergency Wills and doctors and nurses will be far too busy to act as witnesses (even if they were willing to do so). There are no rights of inheritance for couples who are not married and the current ban on marriages means there can be no deathbed marriages during lockdown.  Solicitors are unable to take instructions for emergency Wills and this means that those who were leaving their Will planning to another day may not have a chance to put in place provision for their loved ones and the intestacy rules would apply. The group probably most at risk are those people who are unmarried, have assets and children but no Will. As well as the potential inheritance tax risk there is the potential that the surviving partner might have to make a claim against the estate for adequate provision which would conflict with the children’s right of inheritance.

For those who are married with children but no Will, the risk is that there will be an unnecessary inheritance tax bill if the assets are not all owned jointly. Many couples have their own assets and depending on the value, not everything will pass to the surviving spouse under the intestacy rules.

Speak to our expert Lawyers

Whatever your circumstances, we can help you put in place a Will that will ensure provision is made for your nearest and dearest.  We offer a fixed fee service for simple and complex Wills.  If you are interested in putting a Will in place then please call us on 3456 381381 to be directed to a member of our specialist team.