We have been asked by a number of our clients in the Bristol area how they go about completing their Will during the current pandemic of the Coronavirus (COVID-19).
For a Will to be legally binding the testator (i.e. the person making the Will) must be of sound mind and understand the terms of the document which they are signing. However the difficulty in this time is arranging two witnesses to be present to see the signature of the testator, and signing their portion to this effect. This is true of online Wills and those completed via email.
It is well established law that a witness should not be one who can be a potential beneficiary and when making a Will this point should never be overlooked. If it is, even though the Will is valid, the witness would lose any entitlement. We therefore advise that the witnesses, two are required under any legal Will, should be entirely independent if possible.
There are a few exceptions to this.
There are 3 witnesses under the Will and the beneficiary does not sign, although the gift to the beneficiary would fail
The beneficiary became a witness after the date of the Will. This would traditionally be by way of a codicil, an amendment to an existing legal Will.
After the Will is signed, the witness and beneficiary marries or becomes a civil partner to someone benefiting. The gift in these circumstances would not be lost
The witness is a professional and benefits e.g. able to charge for their services. However there are particular issues surrounding the definition of professional and further advice should be sought
The witnesses must also be adults of sound mind; have the necessary mental capacity and not be blind. It is also preferable if the witnesses can be easily traceable & not significantly older than you. (In case a question arises about the document or they require tracing after your death).
With the government regulations regarding social distancing and the lockdown, it is of course much harder to put in place the measures above. We would strongly advise that unless advice is received from a medical professional on how such signing can take place without any potential risk, it should not take place and matters should be delayed until further notice.
The BBC has reported that ‘Documents have been held in place by windscreen wipers and signed on a car bonnet in a novel way for Wills to be witnessed during social distancing’. Signatures are also being watched through windows and patio doors, over garden fences and in driveways, as current restrictions make 200-year-old Will Writing laws difficult to uphold.
Whilst we would not advise such methods unless approved by a medical professional, there are calls to relax the signature requirements. The existing law dates from 1837, and the witnessing rules have been tested by social distancing during the coronavirus pandemic.
The Law Society has called on the government to relax the law but the Ministry of Justice have said there were currently no plans to do so.
"This is a delicate area of law and we absolutely must continue to protect the elderly and vulnerable against potential fraud," a spokesman said. "We will consider all options and keep this under review during the Covid-19 pandemic."
We do urge when writing a Will you obtain the assistance of a professional, we have experienced far too many DIY Wills which are vague or simply invalid. We also urge our clients not to burden medical professionals unduly during this difficult time and we understand hospitals have a strict policy on staff members acting as witnesses and handling documentation.
We are still operating a limited service in the Bristol area during the coronavirus pandemic and our Will writers are able to complete documents via email correspondence using a process we have had in place for many years. However we have suspended all home visits for the time being, and once the situation concerning Coronavirus (COVID-19) has changed, we will resume this service and deal with any outstanding documents as soon as reasonably practicable.
With regards to completing Wills via Zoom or other such method, the government announced on the 25th of July that any documents completed in this was would be lawful provided the quality of sound and video was sufficient to see and hear what was happening.
Justice Secretary & Lord Chancellor, Rt Hon Robert Buckland QC MP, said on the matter,’ We are pleased that more people are taking the incredibly important step to plan for the future by making a will. We know that the pandemic has made this process more difficult, which is why we are changing law to ensure that wills witnessed via video technology are legally recognised.
The measures will be retrospectively put into force from the 31 January 2020 and will last until the 31st of January 2022, or indeed longer if necessary. It has however been stressed by the government that such a method should be a last resort and we understand signing through windows has already become a popular method.
Rose & Trust of Bristol can be contacted on 0117 369 1969 if you have queries regarding Will writing and the signing of documents and we extend our well wishes to all those affected by this current crisis.