While many legal documents have formal requirements for signatures to be witnessed, there are particularly prescriptive rules for wills (see our colleagues' blog for information on other legal documents). The same rules apply to codicils, which are sometime used to make changes to existing wills. The requirements for executing a valid will are set out in legislation that is over 180 years old and which requires a will to be signed in the presence of two witnesses present at the same time.
In normal times, we send out a will bound together with a ribbon and a detailed explanation of the signing procedure for the testator and two independent witnesses. It is crucial that the formalities are strictly complied with in order to create a valid will that can be admitted to probate after the testator’s death.
In the last fortnight, there has been both a surge in demand for updated wills by anxious testators and an announcement by the government that people need to “stay at home and away from others”.
Our solicitors continue working as normal, albeit remotely and can respond to our client’s instructions by preparing wills and sending them for testators to print at home, however, obtaining any witnesses let alone two independent witnesses has become an acute problem.
We are lobbying the government through the professional bodies for emergency changes to these requirements in England and Wales but, until they are able to respond, our advice is as follows.
- Can I ask a family member in my household to witness my will? It is crucial that you do not ask a family member who (or whose spouse or civil partner) stands to benefit from your will to act as a witness, as this will invalidate the legacy to them.
- Can I ask independent witnesses to witness my will over a live video link? Case law makes it clear that this is not a valid method of signing a will. Our view is that allowing solicitors to witness wills via video link would be the preferred emergency measure for the government to bring in while the country is in “lockdown”. We feel this would provide adequate safeguards against abuse and allow solicitors to assess the client’s capacity and susceptibility to undue influence and act as one of the witnesses in the signing process. Emergency guidance for Scottish solicitors was issued on 25 March by the Law Society of Scotland, permitting the witnessing of wills by video-conference. While the Scottish law on wills differs significantly from ours, we hope that similar guidance or a change to the law in England and Wales will be announced imminently.
- Can I sign via e-signing? Without an emergency change to the law, it is clear this would not be a valid signing method for a will.
- Can I ask two neighbours to witness me signing my will through a window and then pass it to them to sign it on the other side of the window? While some very old case law suggests this may be permissible, it is unclear whether this is sufficient to satisfy the requirements of the Wills Act. While we do not recommend this method of signing, it would be better for a testator to sign their will in these circumstances than to remain intestate or with a valid will that does not reflect their current wishes. If this method is followed we would recommend that the witnesses make a contemporaneous note recording that they were confident that the testator was signing of their own free will and that there was no evidence of coercion from anyone out of sight of the witnesses. These are extraordinary and unprecedented circumstances and we would hope that the courts would take a pragmatic view of a will signed in this way during the current lockdown, particularly where the witnesses can give evidence as to the mechanics of signing.
- What can testators and witnesses do to reduce the risk of transmission whilst being sure to comply with the current formalities in England and Wales? The requirement is that testators and witnesses need to be in the presence of each other when signing. This requirement is satisfied if signing takes place indoors or outdoors and other appropriate social distancing measures can be adopted. Thus, the individuals concerned do not need to be within two metres of each other, nor do they need to use the same pen. It is also fine for all three individuals to wear gloves – preferably disposable gloves.
While we await clear guidance on this unprecedented situation, please contact your lawyer for advice if you need to sign a new will or codicil.