Coronavirus: Executing Wills and Codicils during a time of social distancing

The current period of extraordinary uncertainty caused by the coronavirus pandemic appears (quite sensibly) to be one such time, and the Society of Trusts and Estate Practitioners has reported a 30% increase in the number of people wanting to make or update their Wills over the last month.  The Mills & Reeve Private Client department likewise finds itself typically busy, despite our new remote way of working. 

However, whilst preparing a Will or Codicil (a document which can be used to update an existing Will) is one thing, the practicality of a perhaps particularly vulnerable testator having to execute that document during a time of social distancing and self-isolation is another, and one which causes some difficulties. 

This is particularly so given that the people living with the testator are also most likely to be their beneficiaries, and so cannot act as a witness to the Will or Codicil without invalidating their entitlement.  Under the current legislation (implemented during the 19^th Century) to be valid a Will must be signed by a testator in front of two independent witnesses, present at the same time.  

Together with a number of other high profile law firms, our solicitors are currently urging the Law Society of England and Wales and the Ministry of Justice to make urgent changes to the current legal requirements, but until they do so we give some tips/clarification below, to ensure Wills and Codicils are executed, and executed correctly:

• The Will must be signed by the testator “in the presence” of two independent witnesses.  The witnesses must also sign the Will in the presence of the testator. 

“In the presence” means the witness must have a direct line of sight to see the testator in the act of signing – they do not need to see what is being signed, however.  This means that they can keep their distance from the testator, and still be a valid witness.

• Likewise, the testator must see the witnesses sign the Will – but again, only has to see the act of signing, so can keep his/her distance from the witnesses.
• The witnesses need not sign the Will in the presence of each other – but they must both see the testator execute the Will at the same time.  So they can keep their distance from one another, too. 
• As long as the room is big enough therefore, it should be possible for everyone to stay at least 2 metres apart.   
• To take it further, it is even possible for someone else to sign the Will on behalf of the testator at their direction.  This may be one of the attesting witnesses, and they can either write the testator’s name or sign their own name on the testator’s behalf.  If this is done, there should be a clear record of what was done (and preferably video evidence of it happening).  This option means it should be possible for someone to execute a Will without coming into direct contact with any of the witnesses.
• Debate continues as to whether it should be possible to witness documents via videolink or skype, and it is interesting to note that we are already seeing legislative changes being enacted around the world relaxing the rules on will signing to that effect.  We are aware of changes in New Zealand, Ontario, Queensland and Jersey … but others may follow suit.
• We are yet to see any change in respect of the rules in England and Wales however, and whilst the Law Society of Ireland has confirmed that Wills can be witnessed through the windows of homes or cars, the Law Society of England and Wales has not expressly said the same (or at least not yet).  Although there is some case law suggesting a Will may be witnessed through a window, that case pre-dates both the French Revolution, and the Wills Act of 1837 (which introduced the requirements) – and so is certainly not fool-proof. 
• For now, if you are executing either a Will or Codicil we would urge you to contact us for advice beforehand as to the method you intend to follow, and also for both you and your witnesses to make a contemporaneous note or recording of the signing, to be kept alongside the document itself.