COMMENTARY: Making a Will during the Coronavirus Outbreak
For more than 180 years, English law has prescribed that a Will is only binding and valid if a testator and two witnesses sign it in each other’s presence. Of course, this is not the only element of executing a Will that makes it valid, but it is the aspect causing the most practical difficulty during the Coronavirus outbreak.
A key part of the Government’s strategy to tackle the public health crisis is social distancing. This involves limiting non-essential travel, staying and working at home wherever possible; 12 week’s self-isolation for at-risk persons; no gatherings of more than two people and staying at least two metres apart from one another at all times. For obvious reasons, this is testing a law which depends on three people being physically close together to sign a single copy of a paper document. Moreover, many legal practitioners no longer have access to their offices to produce and post documents or the ability at present to offer meeting rooms to clients to ensure a Will is executed validly. For their part, many clients may not have access to a printer nor independent witnesses they can call upon at home.
The Wills Act of 1837 (the origin of the law in this area) was logical at the time it was passed and has functioned reasonably well for many years. Now however, many lawyers are calling for the rules to be relaxed in the current crisis. Today the law seems out of date and desperately impractical in the era of e-mail, electronic signatures and video calls. Other jurisdictions, like the USA, have introduced laws which allow testators and witnesses to execute a Will without being in each other’s physical presence.
Only time will tell if Parliament will respond with a reform of the law. Until such time, here are some practical tips for Testators and Witnesses signing a Will in this crisis:
- First and foremost, be aware that if the paper Will has been handled by others it may very well be a vehicle for the Coronavirus. Before and after handling any document, be sure to wash your hands for at least 20 seconds in accordance with the government’s guidance. If surgical gloves are available, use those before handling any document or pen. Make sure everyone uses separate pens to sign.
- Make use of physical barriers: are there any windows through which the two witnesses can observe the signing (whilst keeping two metres apart and maintaining sight of the testator)? Or are there any low garden fences between neighbouring houses? If so, perhaps the Will can be witnessed from a neighbour’s garden.
- Use of key workers as witnesses. Key workers are not restricted in their movements in the same way as others are. If you are not self-isolating and can leave your home for exercise, you could ask local shopkeepers to witness a Will (so long as social distancing rules can be maintained). If in a hospital, doctors and nurses may be asked to witness a Will. Some lawyers may be able to offer a Will execution service to help overcome this problem.
- Ask those you live with to witness a Will if they are not beneficiaries: lodgers, neighbours and housemates maybe able to act as independent witnesses for a Will. They are also likely to be readily traceable compared to others if they ever needed to give evidence in Court that the proper procedure had been followed.
- Do not use family members or anyone benefitting under your Will as witnesses. This will render a gift to those individuals null and void and the weight of any evidence they may give in Court about the validity of the Will is likely to be questioned.
- Do not sign the Will electronically. Whilst English law allows contracts and deeds to be entered into using e-signatures and electronic versions of documents, this is not permitted for the signing and witnessing of Wills in England and Wales at present.
- Do not witness the Will using a video call. English law currently requires the witness to be in the same location and presence of the person signing the document. The witness needs to be able to see the person signing the Will and the document being signed with their own eyes and not through the lens of a camera. The law places so much emphasis on this, that those who are blind cannot witness a Will.
We hope that this guidance is useful. If you do have further questions or require advice on this topic, please speak to your usual Druces contact. For further assistance please do not hesitate to contact: