Covid-19 update: lack of due execution

Posted: 04/05/2020

To be valid, a will must comply with section 9 of the Wills Act 1937, namely:

• a will must be in writing and signed by the testator (or by someone else in their presence who has been directed to do so by the testator);
• it must appear that the testator intended by their signature to give effect to the will;
• the testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time;
• each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.

Given the current Covid-19 crisis, it is particularly important to take legal advice to address concerns. For example:

• how can a testator sign a will “in the presence” of two witnesses? The courts have interpreted “in the presence of” as being “in direct line of sight” in some cases so it may be possible for witnesses to be in another room from a testator as long as they can see the testator signing the will;
• what if a testator is physically too weak to sign a will (albeit capable of giving instructions for that will)? It is possible for another person to sign a will at the testator's direction, but that direction must involve some positive communication (verbal or non-verbal) by the testator, as opposed to mere acquiescence.

In both cases taking a contemporaneous note of the execution of the will (or video recording) may help in the event the validity of the will is later challenged, but in the absence of emergency legislation or guidance, witnessing via video-conferencing or use of an electronic signature is currently not possible. It was reported on 8 April 2020 that the government had no plans to relax the rules and this was confirmed by the government's Ministry of Justice spokesman, in answer to a written question on 21 April 2020.

Care must also be taken to ensure that:

• a witness to the will is not a beneficiary under the will (often likely to be the case where families are in lockdown together). That will not invalidate the will but will make the gift to that beneficiary (and their spouse or civil partner) invalid;
• the correct will is signed, not an earlier draft;
• the correct attestation clause is used to cater for any changes in the usual circumstances in which a will is executed;
• the witnesses do actually see the testator actively sign the will (or acknowledge his/her signature) and not merely see the signed will. They do not need to know the contents of the will (which can remain confidential to the testator).

It is always advisable to have a valid will in place and to take legal advice during its preparation. It provides peace of mind that provision for family members has been made and ensures that assets are passed to those an individual wishes to benefit. If an individual dies without a will (intestate), statutory rules dictate the distribution of an estate and family members may fail to inherit assets. We would be happy to advise on the preparation of a will and any particular concerns which may exist due to Covid-19.

For further assistance on this and the execution of wills, please see Covid-19 and making a will: your questions answered.

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