With the coronavirus pandemic we have seen a significant increase in demand for Wills. However, the social distancing, lockdown and shielding measures introduced by the Government to help fight the pandemic have caused significant difficulties in the execution of Wills. With a second “full” lockdown now in force in England this topic has become relevant once more.
Broadly speaking, and amongst other things, the Wills Act 1837 requires that, in order to be valid, a Will must be signed in the presence of two independent adult witnesses present at the same time. As there are stringent restrictions on our ability to meet with others at this time, this is not easy to achieve, particularly for those who live alone but also, in most cases, for those who do live with others, as the people we live with are likely to be the people we want to benefit under our Wills and a beneficiary of a Will or a spouse of a beneficiary of a Will cannot be a witness to the Will or the gift to that beneficiary under the Will will fail.
Some people have therefore been arranging to sign their Wills, with neighbours as witnesses, over garden fences or through open windows. This is possible. But given the unusual circumstances it is extremely important to have a clear record of how the Will was witnessed and to ensure that both the lockdown restrictions and the Wills Act requirements are complied with. It is strongly advisable to take legal advice before signing a Will to ensure that it is, in fact, validly executed.
Some temporary legislation has been introduced – The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020. This allows for a Will to be witnessed by virtual means (video conferencing). However, again, it is strongly advisable to take legal advice before signing a Will to ensure it is, in fact, validly executed.
It is worth noting that there is, unfortunately, also a greater scope for Wills to be challenged and held to be invalid on the grounds of undue influence and/or lack of capacity under these circumstances and so, as usual, care should be taken to ensure there is a record of these things as having been considered appropriately.
It is also worth noting that is not possible to sign a Will using an electronic signature nor is it possible to sign a Will in counterpart. Wills signed in this way will not be valid.
If someone were to die without a valid Will in place then his or her estate would be distributed in accordance with the intestacy rules which may not result in his or her estate being distributed as he or she wishes.