Preparing a will during the coronavirus lockdown
Claire Fendley, a paralegal in Harrison Drury’s private client team, offers guidance for people planning to prepare a will during lockdown, to ensure it is correctly signed and witnessed.
Since the start of the coronavirus COVID-19 pandemic, instructions to prepare wills have been up by 30 per cent across the UK. However, signing a will whilst adhering to the strict government guidance regarding social distancing and avoiding close contact with anyone outside your own household, can prove to be challenging under these circumstances.
For a will to be prepared correctly, it needs to be signed by the testator and at the same time, witnessed and signed by two independent adult witnesses, in the presence of the testator and each other. Witnesses need to have the ability to see the testator signing the will whilst maintaining social distancing.
If the witnesses are named as people to benefit from the will or are married or in a civil partnership with a person who is to benefit under the will, then the gift in the will to that beneficiary fails. This can pose a problem in seeking a witness to safely sign the will during lockdown, as in most circumstances it is direct family members who live with the testator and they may benefit from the will. In this situation alternative arrangements may need to be made for suitable witnesses to safely sign the will.
How to execute a will and still follow the social distancing guidance
Records of previously signed wills under these conditions date as far back as 1781, with a case recorded where the testator was in a carriage and the witnesses in a house. The carriage was stopped so the witnesses could see through both the house and carriage windows to the person sitting in the carriage. The person signed the will which was then passed into the house. With everyone still looking through the windows at each other, the witnesses then both signed as well.
The court ruled this will was valid as it had been signed by the testator in the presence of the witnesses even though they could only see each other through the two windows.
A more recent case dates from 2011, where the person signing the document and the witnesses were separated by a glass panel, but it was clear they could still see each other signing the document. This was sufficient to meet the requirement of being in the presence of each other to execute the document.
Scotland has relaxed its laws, proposing that remote signing is sufficient to execute a will. Legislators in England and Wales have not yet followed suit, but as long as the testator and the witnesses have a clear line of sight of each other whilst signing a will, albeit through a glass window or over a garden fence, it should still be considered to be signed correctly.
A will can be safely signed by all parties in a garden or back yard by having the testator sign it and then leaving the document on a table in a protective sleeve with each witness then coming to sign the document using their own pens. Everyone should wash their hands before and after handing the will or use protective gloves. Everyone needs to wait and stay together until everyone has finished signing the document so the rules for a valid will signing are met.
If the parties involved in signing the will are in the same room as each other, during the lockdown period, they should ensure they are at the safe distance of at least two metres apart from each other and follow the same procedure as above.
To discuss your requirements or to prepare your will during the coronavirus crisis, please contact Harrison Drury’s private client team on 01772 258321.
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