COVID-19: How validly to sign a Will whilst social distancing

Social distancing can make signing a Will with two witnesses quite challenging. In this article, we consider how a valid Will can be made during these unprecedented times

28 April 2020

Amongst the many practical difficulties associated with the COVID-19 situation, validly executing Wills has become a very real issue. Unsurprisingly, many individuals are keen to ensure that their affairs are all in order but satisfying the formal requirements to sign in front of two independent witnesses can now be difficult.

If a Will is held to be invalidly signed then the person’s estate may be distributed on the basis of an old Will, or under the laws of intestacy, meaning that their wishes are frustrated. This is therefore an important issue to get right.

This article flags some of the traps to avoid and also sets out some suggestions for workable solutions. 

The requirements

In order for a Will to be validly signed, section 9 of the Wills Act 1837 requires – with certain exceptions, for instance, for those on active armed service - that it is:

  • in writing
  • signed by either:
    1. the person making the will (the 'testator'); or
    2. another person in the presence of the testator and at the direction of the testator;
  • signed in the presence of two or more independent witnesses who:
    1. are present at the same time (i.e. they are both present when the Will is signed and see it being signed); and
    2. each attest and sign the will in the presence of the testator.

The key difficulties that testators currently face are:

  • Finding two suitable witnesses
  • Signing the Will “in the presence” of those two witnesses
  • Arranging for the two witnesses to sign in the presence of the testator

Traps to be careful of

Do not use electronic signatures

Whilst the law allows electronic signatures for deeds and other forms of contract, they are not valid for Wills.

Do not sign in front of anyone who may inherit under the Will (or the spouse or civil partner of such a person)

In practice, most people are currently 'locked down' in their homes with only immediate family for company. Such people are quite likely to be potential beneficiaries of the Will.

It is vital that the witnesses are not due to inherit under the Will (or the spouses or civil partners of anyone due to inherit), otherwise any legacies in their favour will be treated as void by section 15 of the Wills Act. (However, see below regarding one possible way in which – in an extreme case - this might work.)

Do not use counterparts and ideally don’t use duplicates

Whereas it is perfectly acceptable to sign many forms of contract in 'counterpart' (with each party signing a different copy of the same document), this approach should not be taken with Wills. The testator and the two witnesses must all sign the same original document.

The use of 'duplicates' (where everyone signs two or more copies of the same document) is also problematic for Wills. Whilst duplicate Wills can be valid, they are generally to be avoided. Duplicates can give rise to practical issues when providing all of the originals to the Court and also uncertainties in relation to revocation by destruction. If multiple copies of a Will are required for record keeping purposes it is far better to execute a single original and then make copies of that.

Practical options to consider

It is important to follow government guidelines regarding social distancing, particularly if anyone involved is elderly or vulnerable.

We understand that the Coronavirus can survive on paper for several hours and so care must be taken even in handling a Will that has been touched by someone else.

Maintaining distance and wearing gloves

The simplest option might be for the testator to ask two appropriate individuals who live nearby to visit them and sign the Will outside (either in the street or a front garden).

Each of the testator and the two witnesses should wear disposable gloves throughout the process.

Provided that they maintain line of sight to each other during the signing process, each individual can sign the Will in turn (with the testator going first). If each signatory leaves the Will somewhere for the next individual to pick up then they should never need to come within two metres of each other.

Witnessing through a window

Some very old case law (which relates to horse-drawn carriages) suggests that the signing of a Will could be witnessed through a window.

This may help everyone maintain distance during the process, although care will need to be taken when the Will is being passed between the testator and the witnesses.

Waiting for a relaxation in the law

The government is considering temporarily relaxing the law on the execution of Wills to take account of the COVID-19 pandemic. However, it does not appear as though there is likely to be any move on this in the immediate future. A Ministry of Justice spokesman has been quoted as saying 'This is a delicate area of law and we absolutely must continue to protect the elderly and vulnerable against potential fraud. While there are no current plans to change the law, we will consider all options and keep this under review during the COVID-19 pandemic'.

Instructing someone else to sign the Will on the testator’s behalf

It is possible for the testator to instruct someone else to sign the Will on their behalf. The person so instructed could also be one of the two witnesses. This might be a practical solution where the testator is particularly vulnerable and any risk of contact needs to be kept to an absolute minimum.

However, the issue of the testator and witnesses being 'in the presence of' each other (discussed above) remains relevant. The law requires that, if someone other than the testator signs the Will, they must do so in the presence of the testator and at the testator’s direction. The testator must then 'acknowledge' that signature 'in the presence of' two witnesses. Acknowledgement can take the form of a gesture or statement.

If we assume that 'in the presence of' requires physical presence, but that witnessing through a window is sufficient, then in practice the process might look something like this:

  • The testator approves the Will and posts it to the witnesses (who ideally live nearby)
  • The witnesses bring the Will to the testator’s front window (with the testator remaining indoors so as to ensure no physical contact)
  • The testator and witnesses speak over the phone (or shout through the window!) to confirm that:
    • The Will is the document which the testator has approved and sent to the witnesses
    • The testator directs one of the witnesses to sign the Will on his behalf
  • The individual so directed signs the Will on behalf of, and in sight of, the testator
  • The testator 'acknowledges' the signature, either by gesture or, preferably, by phone call to expressly confirm that the signature is acknowledged (both witnesses must witness the acknowledgment at the same time)
  • The witnesses then each sign the Will in sight of the testator

Consider other jurisdictions

The testator may be entitled to make a Will under the law of another jurisdiction with less stringent formal requirements. Although we would generally recommend always having a UK Will to deal with UK assets, in some circumstances it may be appropriate to use a Will from another jurisdiction.

Will and subsequent Codicil with four witnessing beneficiaries

As noted above, it may be possible to get around the rule against beneficiaries witnessing a Will. This could work in the following way:

  • A, B, C and D are set to inherit under a Will
  • A and B witness the signing of the Will
  • Subsequently a Codicil is signed whereby C and D are the witnesses.

Once the Will and the Codicil have been completed, the gifts to all beneficiaries are likely to be valid.

Before the Codicil, the gift to A and B is void. However, the Will is subsequently confirmed by the Codicil (that is not witnessed by A and B) so A and B will not be deprived of their entitlement.

The gifts to C and D are valid after the execution of the Will because they do not witness it. When C and D subsequently witness the Codicil, they do not lose their entitlement under the Will.

Despite this being one of the more complicated methods, if you are in a position where you have 4 witnesses available to you during this time, it’s certainly one to consider.

Untested Methods

Remote witnessing

The law on the remote witnessing of Wills is currently uncertain and has not yet been tested in the courts. Given this uncertainty, we cannot endorse the following suggestion for remote witnessing, but it is something to be considered if there is absolutely no other choice - for example where the testator lives alone and has no neighbours - and it is urgent to sign a new Will. This option may be better than doing nothing. It is possible that a court would accept the validity of a Will prepared in these extreme circumstances if this was the only option open to the testator.

If this method were to be adopted, the best procedure would seem to be as follows: the testator signs the Will whilst both witnesses watch via a video link. The Will should then be posted to the witnesses and a second video call arranged during which the testator confirms that the document and the signature are theirs and the witnesses (who ideally live together and are present at the same time) sign the Will whilst the testator watches them. As much of this as possible should be recorded to present as evidence of validity if required. We would further recommend that the witnesses be legal or other professionals if possible.

We would also recommend that the usual attestation clause for the Will be specifically changed – having agreed in detail in advance exactly how the Will will be witnessed – so as to reflect the exact procedure used.

Remote witnessing where some else is instructed to sign the Will on the testator’s behalf

The untested method of remote witnessing could be combined with instructing someone else to sign the Will on the testator’s behalf (as discussed above). This method should also only be considered if no other option is open to the testator.

Conclusion

These are clearly unprecedented times and we must all recognise that the law on signing Wills simply did not envisage 'social distancing'. Given the complexities of this area of law, and the serious implications of getting it wrong, we strongly recommend taking expert advice.

How can we help?

Burges Salmon’s Private Client services team have substantial experience in all areas of Wills, trusts and estate planning. If you have any concerns about such issues in light of the COVID-19 pandemic, please do get in touch with me or your usual contact in the team.

Key contact

John Barnett

John Barnett Partner

  • Head of Private Client Services
  • Head of Partnerships
  • Tax

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