Who can witness my Will with social distancing measures in place?

We as a nation have entered into uncharted territory as a result of the current coronavirus (COVID-19) pandemic. With our daily office trips and weekend activities stripped from our usual routine, we have been put in a state of unease about what we can and cannot do. 

Although there are not many things we can control just now, one thing we can do is take this extra time at home to reflect on our estate planning. Getting your legal documents in order, especially your Will, is one of the best ways to use this time effectively.

The legal requirement for witnessing Wills

Measures to stay at home and self-isolate were put in place to help battle the effects of coronavirus. However, these restrictions are making it more challenging to prepare for the future, with many left wondering how they can write a new Will or revise their existing Will during this time. 

As it stands, a Will can only be made in writing and by a person (the testator) who is aged 18 or over. Under normal circumstances, a new or amended Will in England must be witnessed and is only deemed valid when it is:

  • Signed in the presence of two witnesses over the age of 18
  • Signed by the two witnesses, in the presence of the testator

When the Will has been signed and witnessed, then it is considered legally valid.

You can read more about the requirements for writing a Will in England by clicking here.

Social distancing – can I still make a Will?

Under the current measures of social distancing and staying at home, there is confusion over what this means for having your Will witnessed. The law states a witness to a Will must be physically present, i.e. not through means such as video conferencing.

During this pandemic, this may still be possible if you live with someone who is not a family member or someone who stands to benefit from your Will, e.g. a friend or roommate. However, for those whose current household consists of only close relatives and beneficiaries, the situation becomes more problematic as using them as a witness will invalidate their entitlement in the Will.

Video witnessing of signing Wills – will this be the new norm in England?

Current laws around the signing and witnessing of Wills have been in place for more than 180 years, and are set out in the Wills Act 1837. To date, there have been no legislative changes to help with the current crisis, albeit various ideas of how to make a Will valid have been suggested. These include:

  • Witnesses watching you sign the Will through a video link
  • Ensuring witnesses remain the recommended distance of two metres apart from the testator at the time of signing
  • In line with s.11 of the Wills Act 1837, extending privileged Wills – similar to those offered to those in the military service – to the public, so a witness does not need to be present for the Will to be valid

The Law Society is currently suggesting a video call for Will signing and witnessing, with detailed notes on how it was instructed and how the process was executed. It has also been recommended that, where appropriate, Wills are re-signed under normal protocol once social distancing measures are relaxed.

The Law Society has approached both the Ministry of Justice (MoJ) and the Solicitors Regulation Authority (SRA) about the legislative barriers to executing Wills amid the COVID-19 pandemic. While talks between the MoJ and the Law Society are still ongoing, some of the suggested options to adopt in the interim are:

  • An Australian-style system that provides judges with more flexibility when determining what constitutes a valid Will,
  • A European-style approach where testators could write Wills by hand without witnesses, and
  • A process where wills could be witnessed by electronic means.

The Law Society has confirmed they will update their guidance as and when they have received further advice.

It is easy to understand why there may be hesitation for law reform around signing and witnessing Wills at this time. With so many Wills already being challenged in Court, there is concern that this figure could dramatically increase if witnesses were not physically present or nobody saw the testator sign the document.

If a Will is created and not properly executed, you could be opening the door for it to be challenged for undue influence and whether the testator was of sound mind. It is therefore crucial that we move forward with extreme caution, following legal requirements as closely as we can to ensure that any written or revised Wills during this period are valid in all senses.

Having the assistance of a qualified Wills lawyer can ensure your Will is not questioned for its authenticity in the future. While these current circumstances are rare, our team will aim to ease the strain by guiding you through the proper avenues to creating a legally valid Will.

Contact our Wills lawyers in London today

The COVID-19 pandemic has highlighted the importance of ensuring your Will and all estate planning is prepared for unexpected circumstances. While our office remains closed, our lawyers at Avadis & Co are fully available to speak with you today. Do not delay, get in touch with our Wills team today and we will help ease the stress this crisis has caused.

This guide does not constitute legal advice and is provided for general information purposes only. If you require specific legal advice you should contact one of our lawyers who can advise you based on your own circumstances. *Please note this information is accurate as of 29/04/20 and is subject to change as official guidance is adapted to reflect the implications of the virus.