Covid-19 and making a will: your questions answered

Posted: 27/03/2020

If you are thinking about making a will, don’t delay: do it now. Clare Archer, partner and head of the private client team at Penningtons Manches Cooper, answers the top ten questions our clients are asking.

1. Is now a good time to make a will?

We have seen a sharp increase in will enquiries since the coronavirus outbreak. These unprecedented events have clearly focussed the minds of many on their legal affairs and how to protect their loved ones at such a difficult time.

It is important to ensure you have a valid will as it can, for example:

• provide peace of mind that you have made provision for family members;
• ensure that your assets are passed to those you wish to benefit; and
• appoint people to administer your estate and care for your children.

There can also be serious repercussions where an individual dies intestate (without a will). Statutory rules dictate the distribution of their estate including to elderly parents, siblings or more distant relatives. Unmarried partners are also not recognised under intestacy rules and may have to mount legal challenges to gain access to much needed funds.

2. Are you accepting new instructions?

Yes, we are taking instructions, while prioritising the health and welfare of everyone concerned. We are liaising with other legal professional bodies and continually assessing the impact of Covid-19 on the preparation and execution of wills.

3. How are you communicating with clients?

In ordinary circumstances, we would meet the individuals making a will face to face. Due to the exceptional circumstances at present we are unable to undertake any face to face meetings. We are communicating by video conference (using Zoom), telephone and email. It is ideal if an individual or a third party can receive, open and print documents sent by email. If not, there may be other options available that we can discuss.

4. Will the lack of a face to face meeting affect the validity of my will?

A will can be challenged on a number of grounds: an individual may lack the ability to execute a will (be incapacitated) or be pressured into making one by a third party. The lack of a face to face meeting can make these issues harder to assess, although instructions can still effectively be taken through other means such as video conferencing or phone calls as outlined above. If there are any concerns, we can discuss these in more detail.

5. If we wish to make 'mirror' wills (eg for a married couple), do you need to speak to each of us separately?

We do not necessarily need to speak to couples separately but will review the situation as required. If circumstances were to change during the course of instruction and we needed to speak to a couple separately, we would do so.

6. How will you send the will to me?

We normally would advise an individual to come to our office to sign their will in order to ensure it is properly executed (signed). Under the current circumstances we are sending wills directly to our clients by email with instructions for execution. As the will is executed and witnessed, we suggest we use Zoom for the meeting, if possible, to watch the process take place in person. We appreciate we will not be able to do this in every case and will discuss other options where necessary.

If you or a third party are unable to print documents sent by email, we will discuss suitable alternatives.

7. How can I execute my will?

Strict criteria exist to ensure a will is validly executed. Two independent witnesses must be physically present at the same time together with the testator (the person signing the will) and they must all sign the same document. Failure to do this properly can render the will invalid or subject to a challenge in court and intestacy provisions may then apply.

During current circumstances it may be difficult to ensure both the testator and witnesses are ‘physically present’ at the same time. There are options available to address these concerns, which we can discuss with you if needed. Separate pens can be used to execute the will and gloves worn for handling it if necessary.

8. Who can witness my will?

Current circumstances do provide challenges when complying with the requirement to find two independent witnesses. Any witness together with their spouses/civil partners should be completely independent, not named in the will, or in any way interested under the terms of the will as a beneficiary. They must also be over the age of 18.

Individuals may need to look to neighbours or others known to them in their community to see if they are prepared to act as witnesses. Such witnesses should be identified as soon as a decision is made to prepare a will.

9. Can I use an ‘electronic’ signature or virtual execution for my will?

A will must be in writing and all parties must be physically present at the same time during execution for it to be valid. Such formalities mean the use of an electronic/scanned signature or ‘virtual execution’ (e.g. over Skype, Zoom etc.) for a will is currently not recommended. Even in these unprecedented times, any change in approach could render a will invalid and lead to a challenge in the courts. It is possible emergency legislation will be passed to simplify the process for execution and to adapt to current circumstances. Such changes will be assessed if and when they take place.

10. Do I need to return a will once it has been executed?

It is not vital to return the executed will to us. A properly executed will is valid regardless of where it is stored. We will discuss with you whether it is possible to obtain and return to us a copy of the will eg through a photograph, but it should not be damaged, unbound or have anything secured to it. If the will is not returned to us, please notify us as to where the will is being securely stored.  

We appreciate these are very worrying and uncertain times for all of us. Please contact us if you would like to prepare a will or have concerns on any other matters. We would be happy to discuss them with you.

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