Where there’s a will… there’s a window?

Along with many others in the legal profession, we are seeing a large increase in the amount of enquiries relating to wills. Several of these enquiries are coming through from many people, and in particular older people, concerned about their increased risk of serious illness in light of the COVID-19 pandemic, however, when it comes to writing a will, there’s been a few adjustments to the “norm” to allow for the correct social distancing rules.

In order for a will to become an official, legal document, it must be signed by and in the presence of two witnesses. These legal requirements date back to The Wills Act of 1837. The person writing the will, or the “testator ” or the “testatrix” signs the document in the presence of the witnesses who must also sign the will in order to validate this. The witnesses can be called to give evidence to the probate registry if there are any queries as to how and when the will was signed.

A witness is not allowed to be married or in a civil partnership with the person who is making their will, or related to any beneficiary so a witness is usually someone independent, a friend, neighbour or work colleague for example. It is this requirement that is causing problems at present.

However, whilst social distancing is making it more difficult to get a will witnessed, there are some solutions. Witnesses must be in line of sight. They cannot call in by video or sign a will digitally, but they can be present whilst adhering to social distancing rules. Witnesses have been standing around a garden table, taking it in turns to approach and signing quickly without sharing pens before adopting the proper handwashing techniques. Some witnesses have also been known to pass documents through a window, the Ministry of Justice is constantly reviewing other methods that could be deemed acceptable during the COVID-19 pandemic. This however needs to be very cautious approach as this could cause significant issues at a later date.

If you need to make changes to your will quickly, as a number of people have been recently, then you will also need to prove you are of sound mind. A will is only valid if the person making it can prove they have the mental capacity to make decisions and act on their own behalf and a doctor may be asked by the solicitor to act as one of the witnesses to the will or write a letter confirming that their patient has mental capacity to make a will. Some doctors and specialists are been called upon to assess capacity remotely by a video call. This is very helpful if the patient is in isolation.

If you would like some further advice about updating your will or writing a new one, contact the Private Client team to see how we can help.