COVID-19 has touched every part of our lives in 2020. We have worked from home, seen our friends and families through Zoom or Skype, and are getting used to wearing face coverings. The pandemic has also affected how we make wills, and I have received many queries from clients wondering how to make a properly executed will while in lockdown or self-isolating. The Government is introducing legislation that (temporarily at least) changes the 183-year-old rules about how wills are made, to allow video-witnessing wills. I look at the existing law on making wills, and what the new law will allow and my thoughts on the new legislation.
What is the current law?
In brief, the current law states that a will shall not be valid unless:
- The will is in writing and signed by the testator (person making the will);
- The testator signs the will in the presence of two or more witnesses. Both witnesses must be present at the same time;
- Each witness attests and signs the will in the presence of the testator.
- The executor to the will can be a witness. However, a beneficiary (someone who will benefit from the will after the testator’s death) or the testator’s spouse or civil partner cannot be a witness to a will or they will forfeit their gift.
The existing law states that a witness must have a “clear line of sight” of the testator signing. Likewise, the person making the will must have a clear line of sight of the witnesses signing the will.
How did the pandemic affect the current law on will-making?
It has proven difficult (although certainly not impossible) to balance the various rules relating to self-isolation, lockdown and social distancing, with the laws on making a valid will. For example, if you are self-isolating and live only with your spouse and/or beneficiaries, who can witness your will and how?
Over lockdown, my clients have come up with inventive ways of making valid wills. From witnessing signatures over garden fences to passing documents between cars parked two metres apart.
The Government looked at how they could introduce easier ways to make wills during the pandemic. They considered various options and then agreed to introduce witnessing wills by video link. The video link (e.g. Zoom, Skype or the like) must be live. You cannot witness a will by watching a pre-recorded video.
The Government has said that video-witnessing wills should be used in exceptional circumstances, and should not become the norm. The new rules are temporary and will apply to all wills made from 31 January 2020, until January 2022.
In my view, video-witnessing wills does not wholly solve the issue. My fear is that the process may be open to abuse and/or fraud. Further, the Government has not yet published the legislation. Therefore, it is not possible to say whether wills that have been remote-witnessed since January will be deemed valid or not.
I advise my clients, where possible, to ensure that their wills are properly witnessed by people who are physically present. I advise each client on their circumstances, as to the best way for them to ensure that their wills are valid and less open to challenge in the future.
If you are concerned about whether your lockdown will is valid, or indeed, if you would like to make a will, contact me on 0800 988 7756 for a free initial discussion. Our offices have reopened and are Covid-safe. However, I can also ‘meet’ you by Skype or Zoom.