22 April 2020

Wills in a time of Coronavirus

By Miranda Marshall, Director, Hayes + Storr.

How quickly things have changed in a month since my last article. At that point there had been a few more Wills being made and some of my older clients were keener than usual to come in and sign their Wills.

The greatest technical challenge in the making of Wills in these times has been their signing, the process of which remains unchanged for 180 years. The Wills Act of 1837 (s9 and s15) was one of the first statutes to which the young Queen Victoria gave her assent, shortly after her accession to the throne.

The one exception is that fighting military etc. personnel are able to make what are known as ‘privileged Wills’. This simply means that Wills for soldiers, sailors and airmen on active service can be written in less formal style and the 1837 signing requirements dispensed with.

After consultation, and despite the reduction of the risks of contagion that could follow, the lifting of the requirement for formal signing is not to happen, as the vulnerable are even more susceptible to abuse in these desperate times.

English law requires a Will to be in writing. The law requires the simultaneous presence of both the person signing the Will and the two witnesses. The witnesses must also see each other sign the Will in the presence of the person making the Will (known as the ‘Testator’).

It is possible for signatures to be acknowledged, which would allow the Testator to sign in perhaps more relaxed circumstances and then display the signed Will so both witness can see and to declare it to be their signature. This is perhaps pushing the boundaries and seeing each other all sign is always to be preferred.

The witnesses must not be people who take any benefit under the Will, or married to a person who takes any benefit.

Where Wills are signed in less than satisfactory circumstances, we will enable Testators to sign their Will again in the exact same terms once lock-down ends, within our fee.

There must at least be a line of sight in the process of the Will’s signing, but there is no prescribed distance. I know a lawyer, who took his adult daughter out to witness a Will signing, which took place on the wheelie bin. There are instances of Wills being passed through the car window after the testator has signed. Signing could also be done with the testator signing in front of a window and then passing the Will to the two witnesses (unrelated husband and wife neighbours, perhaps) who then sign whilst the Testator watches through the window.  This is human ingenuity at its best.

It could be worse. In Greece Wills must be signed at the notary’s office with 3 witnesses all present; so English law is not the most restrictive.

The other challenge with Covid-19 Will-making being done by phone, email and snail mail, rather than at a meeting, is the need to be even more aware of the risks of undue influence and insufficient mental capacity. As a bare minimum I insist on speaking to each of the couple when they make Wills, to assess their understanding and intention. 30 years’ Will-making experience means one can usually tell when things aren’t quite right.

So does the current English Law of making and witnessing a Will enable sufficient social distancing for the purposes of the protection of public health? The simultaneous presence of a person making the Will and the two witnesses would not of itself be a breach of Reg 7 of the Coronavirus Restrictions 2020. Because it falls under the exception of ‘being reasonably necessary … to fulfil a legal obligation’ under Reg 7d)(iv).

The big question is whether public health risk of the simultaneous presence of the Testator and two witnesses is sufficiently alarming to be a deterrent or obstacle to making a valid Will at all, as anecdotal evidence suggests it might be.

Among the country’s key workers are “solicitors acting in the execution of wills”, as specified by the Ministry of Justice. This is a time when experience, professionalism and being local and, sometimes, being known by your local solicitor really count.

We remain open for business, although our office premises are closed. Our lawyers are remote working from home. I live 4 miles from my office and I or one of my team are calling into the office daily to keep the wheels turning. We are here to help and support our local clients (old and new) at this time of national trouble. With appropriate social-distancing we are still meeting clients to get their Wills signed, where needed, and are taking appropriate social-distancing and hygiene precautions to safeguard us and you

I wish you all good health. Please stay home and keep safe in these sad and strange times.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

If you would like further advice on this matter please contact Miranda on 01328 713913. If you require advice on any other legal matter call 01328 863231 or email law@hayes-storr.com.