14 April 2020

COVID-19: How to make a will during this period of lockdown, social distancing and self-isolation

The social restrictions imposed as a result of the COVID-19 pandemic have complicated tasks that would have been simple only a few weeks ago. One such task is the making of a will, which must now be done in a way that takes account of the need for social distancing while also complying with the law.

Although many legal documents, including contracts and deeds, can now be signed electronically, the same is not true of wills or lasting powers of attorney. The government has been looking at the possibility of relaxing the formal requirements, but there seems to be no imminent prospect of any helpful changes in the law.

How then to execute a will?

What are the legal requirements?

To be valid, the law of England and Wales requires a will to be signed (or the signature acknowledged) in person by the testator, or signed by another person authorised by the testator, in front of two witnesses, both of whom are present at the time of signing. The witnesses must each attest and sign the Will, or at least acknowledge their signatures, in the presence of the testator but not necessarily in each other's presence.

Who may witness a will?

Someone who (or whose spouse or civil partner) stands to benefit under a will can validly witness the testator's signature, but will automatically be disqualified from any actual benefit as a consequence. It follows that in the great majority of cases members of the close family, the very people most likely to be living under the testator's roof, must be ruled out as witnesses.

So the question arises: how is an appropriate social distance to be maintained between the testator and those who are to witness the will? The problem can seem acute for elderly or vulnerable testators confined in stringent isolation, whose need to make a will may be especially urgent.

What does 'presence' mean and can the requirements be relaxed in light of COVID-19?

Guidance has been published by a number of legal professional bodies, and representations have been made to the government for some form of 'virtual' execution of wills to be permitted. But in the absence to date of any relaxation of the rules, none of the guidance alters the requirement for the physical presence of witnesses.

We have given some thought to the practical steps open to testators seeking to ensure that their wills are legally valid, despite having been executed with proper regard to the need for distancing.

Making a will during the current crisis

Preparation

If an intending testator is elderly or otherwise vulnerable, it may well not be possible or sensible under current circumstances for the lawyer to pay a home visit to take instructions. A telephone or video call should normally allow the lawyer to assess a testator's legal capacity, backed up by a doctor's opinion in any doubtful case. Medication being taken by the testator which might impair mental capacity needs, now as always, to be taken into account; and for a testator suffering serious respiratory difficulty, blood oxygen levels should ideally be monitored both when instructions are taken and when the will is signed.

The lawyer should of course always seek to be satisfied that instructions received are truly the testator's, and not given under anyone else's undue influence. Where a face-to-face meeting is impracticable, a video call may be better than the telephone as a means of detecting and preventing possible abuse.

Execution of a will during social distancing

As each witness is required to do no more than to see the will signed (or the signature acknowledged) by the testator, and does not need to be able to read the testator's signature or the text of the will, a distance of two metres or more between testator and witnesses need not prevent correct execution of the will. If the simultaneous presence of all three parties in one room is regarded as unduly risky, using the testator's garden or some other suitable outdoor space may be preferable.

Failing that, a testator might even seek to rely on a case decided in the 18th century, when a will signed by the witnesses as the testatrix watched from her carriage through an office window was held to be valid. Some evidence, perhaps a video recording, of how this or any other unorthodox (but presumably lawful) approach to will signing was implemented would be useful in the event of any challenge after the testator's death.

Risks of virus transfer through the will itself

This is not a matter on which we can claim any expertise. The following comments assume however that there may be some slight level of risk.

To prevent any transfer of infection from the paper on which the will is printed, it should, if possible, be sent by email and then printed (and the pages stapled together) at the testator's home prior to signature. As a further protective measure, gloves might be worn during the signing and witnessing.

In fact, a particularly vulnerable testator can avoid coming into physical contact with the will altogether by directing another person, who will usually be one of the witnesses, to sign the will on his or her behalf. Even in normal times, this approach is commonly adopted for blind testators. The process must be completed in the presence of the testator and the other witness (or both witnesses, if a fourth party signs for the testator). The attestation clause should make it clear that the testator has directed the will to be signed by someone else, so if at all possible the intention to do this needs to be recognised by the lawyer at an early stage.

Extreme situations

In almost all cases, it should be possible to execute a will by carefully following one of the approaches explained above. There has however been speculation in the legal press and elsewhere that the courts might look benevolently upon wills executed, during this unusual period, in the physical absence of the two witnesses but in their virtual presence, by video link or some other electronic means.

It is our firm view that, unless and until the current legal requirements are temporarily or permanently relaxed, any such irregular approach to the execution of a will should be regarded only as a last resort, to be adopted (if at all) in full knowledge of the risk of later legal challenge. Only in those rare cases where there really is believed to be no safe and practicable alternative should it even be contemplated.

It probably goes without saying that an irregularly executed will must be replaced with a new one, properly signed and witnessed, as soon as possible after the testator has recovered and the current restrictions have been lifted.

International aspects

Testators with international connections may well be able to avoid the practical difficulties currently confronting those executing wills in England and Wales. In some countries, the signing of a will need not be witnessed. Holographic (or handwritten) wills are acceptable in a number of jurisdictions.

English law accepts that a will is valid if the manner of its execution complies with the law of the foreign country in which it is signed. Even a will prepared and signed here will be formally acceptable for English purposes if the signing formalities comply with the law of the territory of the testator's domicile, habitual residence or nationality – whether at the date of execution, or of the testator's death.

In any event, a testator owning land abroad is frequently well advised to instruct a local lawyer to draw up a will complying with local law and practice.

Disclaimer

The current global crisis is evolving rapidly, and the rules and guidance for individuals, companies and other entities to manage its implications are similarly fast moving. Notes such as this may be out of date almost as soon as they are published. If you have any questions prompted by this article or on any other matter relevant to you, please get in touch with your usual contact at Forsters.

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