We are still actively writing wills during lockdown. Whilst the social distancing restrictions are inevitably causing practical difficulties when it comes to face to face meetings and execution of documents, we have adapted our existing processes and have streamlined a new distance will writing process. We can prepare your wills and post them to you for execution with relative ease. However we are not expecting the rules on witnessing wills to be relaxed in the near future.
We thought it might be helpful to provide clients and potential clients with a little bit of advice about how to arrange for wills to be executed during ‘lockdown’.
Witnessing a Will while Social Distancing
Section 9 of the Wills Act 1837 requires that a will be signed “in the presence of two or more witnesses present at the same time”.
This inevitably causes difficulties when our social interactions are restricted. Beneficiaries cannot witness a will without invalidating any gift to them or their spouse (section 15 of the Wills Act 1837). Given you are likely to be leaving gifts to members of your household, you cannot ask them to be witnesses to the signing of your will.
The current government guidance restricts how you interact with others outside of your household, and current guidance stipulates that you must maintain a distance of at least 2 metres from those people outside of your household. Furthermore, there are currently restrictions on your ability to leave the house so you are required to have a specific reason for this. So where does this leave you if you need to get your will witnessed?
In the absence of emergency legislation or guidance, witnessing a will via video-link is not possible. There was recently a Law Commission consultation on the law of wills (2017) from which we can take guidance – the Law Commission said that it was unlikely that the current law governing witnessing extends to witnessing via video-conferencing, because “presence” has been held to involve physical presence (see paragraph 6.32 of the Law Commission: Making a will (Consultation Paper 231) (13 July 2017)).
There is a very old case dating back to 1781, Casson v Dade ( 6 WLUK 25) which suggests that it may be sufficient for witnesses to view the signing when they are separated by a glass window. However, care must still be taken when choosing to execute a will this way as this decision was made before the Wills Act 1837 came into force.
It is ultimately your decision as to how to arrange the witnessing of your will whilst maintaining social distancing, but hopefully armed with a little further knowledge on the law, you can ensure that your will is executed correctly and in a legally binding manner.
Practical advice on witnessing a will
You might consider using a garden table or passing your will over a low garden fence to neighbours signing as witnesses, but one thing we would recommend would be that all parties use their own pens, with as little contact as possible. Please remember to follow the guidance on hand washing after touching anything handled by someone outside of your household.
However you choose to arrange for your witnesses to sign whilst maintaining social distancing, it is crucial that the witnesses can see the testator signing the will. We need to follow the existing rules as best we can during these unprecedented times. For further advice please email Laura Lewis or call her on 01869 228980.