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COVID-19 pandemic and Wills update
Key workers and Wills
As a result of consultation with the Law Society, solicitors who are “acting in connection with the execution of Wills” are now on the list of keyworkers. It is clear we are dealing with a national crisis that will lead to deaths, and that solicitors who make Wills have a part to play in that.
Allwyn Sanger, as Private Client solicitors, are noticing an increase in the number of Will instructions as the public stare at their mortality. The execution of a Will is the last bastion of law where physical face-to-face contact is a requirement to make the Will legally valid (at a time when social distancing is the new code of conduct). Therefore, we now have a uniquely challenging situation.
What is the legal position?
The Wills Act 1837 s9 sets out how to validly sign a Will. A requirement is that the Will is made or acknowledged by the testator in the presence of two independent witnesses (not named in the Will and not related to anyone named in the Will and who must be over the age of 18 years) at the same time
Of course, this is contrary to the COVID-19 safety guidance. This calls for a relaxation of the legal requirements in these exceptional times. It is interesting to note that The Wills Act 1837 does make special provision at s11 for those on active military action to make privileged Wills, but this is specific, and cannot be extended to civilians without further legislation.
The Law Society, the Ministry of Justice and the Solicitors Regulation Authority are looking at taking a common-sense approach.
The need for two witness or the consequences
This was considered by the Law Commission Wills Consultation in 2017. Interestingly, a consultation on digital signature on deeds acknowledged an electronic signature is valid under English law, but nevertheless made an exception for Wills. The vulnerability of the clients concerned was given as the reason.
This vulnerability exists because the person who makes the Will (the testator) is in fact the only person who can tell us about the actual circumstances in which the Will was signed, and once he/she dies, so does that information.
Examples of questions that would remain unanswered would be:
- Did someone force them to sign the Will?
- Was it actually them who signed?
- Did they understand what they were signing?
- The questions around this are infinite.
Though this safeguarding is rigorously applied, a great number of Wills still get challenged.
Taking instructions during Covid-19
Allwyn Sanger would welcome the opportunity to maintain a good relationship with our new and existing clients who need to make a Will at this difficult time.
- We continue to accept instructions to make Wills.
- We will first check to see if you need a Will (because sometimes just cancelling an existing Will or dying without making a Will called intestate may achieve the same thing and with less risk).
- We will take careful attendance notes of the reason for the making of a new Will or the change in a Will.
- Where possible we will obtain instructions via a video conference call using skype, WhatsApp video call or zoom etc.
- Alternatively, we can take instructions by sitting in a car next to a client in a car and speak on a mobile phone!
Covid-19 and Signing of the Will
Many of our clients will be in their homes with family members who will be the beneficiaries. They cannot be witnesses. This is because a beneficiary witnessing a Will loses their entitlement under that Will
Where possible two members of Allwyn Sanger can witness the Will (and for this purpose we would be classed as keyworkers).
We can either visit our clients in their home or you can attend our office, which will be specifically opened for this purpose. Rest assured we will ensure there is lots of space, and a clean pen for each testator and the two witnesses.
Of course, our priority in taking instructions and executing Wills is to keep our colleagues and you, our clients, safe whilst doing our best for our clients with the utmost integrity.
If you would like to instruct us to make your Will or simply just to obtain advice, please contact Ash Sanger or Esther Watton on 0845-2171377, Ash Sanger is a Director and a Solicitor of England and Wales.