In these unprecedented times some of us may, as we have more time on our hands, be thinking of making a Will or updating an old Will, but are unsure as to whether this is in fact possible due to the current Covid-19 restrictions.
The answer is, yes, it is still possible to make and execute a Will whilst maintaining social distancing.
The formal requirements for signing a Will are found in section 9 of the Wills Act 1837.
The Will must:
- be in writing;
- be signed by the testator (the person making the Will) or by some other person in their presence and by their direction;
- give the appearance that the testator intended by their signature to give effect to the Will;
- have a signature made or acknowledged by the testator in the presence of two witnesses present at the same time;
- be witnessed and each witness must attest and sign the Will or acknowledge their signature in the presence of the testator
During the coronavirus pandemic, many people will be required to or choose to self-isolate. In such circumstances, it will be difficult to meet the requirement for a testator to sign a Will in the presence of 2 witnesses present at the same time and for the testator then to be present when those witnesses acknowledge the testator’s signature and sign the Will. Presence includes mental and physical presence.
The case law suggests that it is not necessary that the testator should actually see the witnesses sign, it is sufficient if the testator might have seen them if he/she had cared to look. As long as the testator is actually able to see the witnesses sign, for example, the witnesses coming to the window of a house and signing within clear sight of the testator that will satisfy the requirement.
Therefore at the current time, rather than adopt our usual practice of the client (testator) coming into our office to sign their Will in the presence of 2 of us, we send the original approved Will to the client in the post with clear specific instructions as to how the Will should be signed and witnessed.
If there is anything out of the ordinary contained in the Will, it may be more open to challenge during the current pandemic as arguments may be raised that the Will was not executed properly or the testator was not of sound mind at the time they made the Will. We at RJT Solicitors are therefore inviting all those clients who have instructed us to prepare Wills for them during the crisis, to come into the office once the current restrictions are lifted, and sign the Will in the presence of 2 of us to ensure that the Will is properly executed. No extra charge will be made for this service.
If therefore you wish to make or update your Will give us a call on 01257 228027 or email rachel@rjtsolicitors.co.uk
