The turbulence of the situation with coronavirus has highlighted the importance of Will writing, with more people than ever now wishing to make or amend wills to ensure that everything is taken care of should something unexpected happen. Whilst present lockdown restrictions mean that office visits are often not possible, this certainly does not prevent solicitors advising and assisting clients with such important matters.
The signing and witnessing of a Will is crucially important:
- The testator must be 18 years old or married.
- The Will must be in writing and signed by the testator or another in their presence and by their direction.
- The signature must be made or acknowledged in the presence of two witnesses, who should also then sign the Will in the presence of the testator and each other.
To comply with the COVID guidelines, solicitors can take detailed instructions by email, over the phone or video call. The document can then be drafted and sent back to the client for review along with details on how to execute it properly.
The interpretation of the wording ‘in the presence of’ becomes increasingly important. The witnesses must have a clear line of sight to be able to see the signature. In light of the current situation, it is essential to remember that the Will must be witnessed by two independent witnesses, that is to say, people who aren’t related to the Will maker. If any intended beneficiary or their spouse were to act as a witness, their gift would be invalid. However, neighbours may act as witnesses, as long as they are not beneficiaries. The Will could be signed by the Will maker and then their witnesses by passing it over a garden fence or through a window. This would maintain required social distancing protocols whilst permitting compliance with the strict Will signing formalities.
Making use of technology, arranging a video call with the solicitor or recording the signatures can help to confirm that the Will maker had the requisite mental capacity to make the Will at that time. This may prove useful if a dispute arises at a future date as to how the Will was executed.
Finally, if there are no other witnesses available, solicitors can witness Wills as they have been designated as key workers under the current guidelines for this purpose.
The administration of the estates of some people who have died had also been halted as a result of the current crisis. However, the courts have recently issued guidance to help break the logjam. Usually, the application for the Grant of Administration of an estate (commonly known as “probate”) is made by an oath sworn by the executors under the Will in the presence of an independent solicitor. As social distancing and lockdown made this very difficult, if not impossible, many estates could not proceed.
Now, however, the Court Service has confirmed that, where swearing an oath is impossible, it will accept a “statement of truth” instead, which does not need to be sworn and can be signed by an executor at home and sent, via their solicitor, into court. This development will no doubt come as a relief to some clients who wish to see their loved ones’ estates progressed.
COVID-19 has caused no end of challenges to everyday life, as well as the obvious physical threat to the entire community. There is, however, no need for it to prevent us from ensuring our wishes are carried out after our death, or from completing estates already in progress.