Wills & Covid-19 – by Lydia James, Partner & Head of Private Client
I have received many enquiries concerning the question of whether or not a Will can be put in place under the Covid-19 cloud, and if so, how it can be witnessed. I have therefore put this together as a guide as to what the legal position is and what the options at the moment are.
In order for a Will to be valid, it must satisfy Section 9 of the Wills Act 1837. If a Will fails to satisfy any of these conditions, it will be invalid and cannot be admitted to probate. Section 9 provides:
- It has to be signed by the testator (person making the Will), and
- The testator intended by his signature to give effect to the Will, and
- The testator has signed the Will in the presence of two or more witnesses present at the same time, and
- Each witness attests and signs the Will in the presence of the testator.
In addition to the above formalities, the testator must also have testamentary capacity, the Will cannot be executed under any pressure or undue influence by a third party and the testator must know and approve of the content of the Will.
Once the Will has been written/prepared for the testator, the challenge as to its execution then arises. Ordinarily, I would attend upon the testator and the Will would be executed in the presence of myself and a third party. However, social distancing measures and the need to shield the vulnerable from infection present particular challenges. Although the formalities appear to be fairly simple, there is quite a lot than can go wrong.
The testator must sign the Will in the physical presence of both witnesses. Both witnesses must see the testator sign their Will and they must thereafter sign the Will, still in the testator’s presence. The witness must be 18 years of age or over, not directly related to the testator and not be either a beneficiary under the Will, or a spouse of a beneficiary under a Will. If the latter applies, the beneficiary loses his/her entitlement under the Will (but the remainder of the Will continues to be valid).
In order to ensure social distancing is complied with, it is suggested that the Will is executed in one of the following manners:
- ‘Table’ execution: A table is placed outside the testator’s home and the Will is placed on the table. Only the testator and the two witnesses are present. The testator approaches the table (the witnesses standing back but being close enough to evidence the signing) and executes the Will. The testator then steps back, but remains nearby so as to evidence the witnesses signing, and the witnesses take it in turns to sign the Will. The Will is dated with the date it was signed. It is suggested separate pens are used to avoid risk of virus transmission.
- ‘Window’ execution: The 240-year-old case of Casson v Dade (1781) held that a Will can be validly executed where the testator, and the witnesses were on opposite sides of a window (an office). It was held that because the testator could see the witnesses sign from outside the window, it was considered sufficient. This decision was applied more recently in Re. Clarke (2011) which related to the execution of a Lasting Power of Attorney, but the same decision was applied.
Should this process be followed, then the same process must be followed as regards the ‘table’ option above, but instead of the Will passing over a table, it will pass between the three parties through a window. It is imperative that all have a visual presence of each other and that they all have a clear line of sight through the glass window.
Despite the Court rulings referred to above, this method carries the risk that the Will may be challenged on the grounds that the requirements of s.9 of the Wills Act have not been complied with. If this method is adopted, then it is advisable that the execution of the Will is recorded, and a detailed attendance note prepared by all three parties confirming the manner in which the Will was executed.
There are other ways in which a Will can be written and signed but all of which carry a high risk that the testator’s wishes will not be upheld and therefore not advisable.
Please note also that there is currently no legal authority on the question of whether or not a document can be witnessed remotely using video technology. Until legislation has been amended and updated to account for this, my advice is to proceed strictly on the basis that physical presence of both the testator and witnesses are required.
We at Agri Advisor should be pleased to assist you in relation to your Will and finding a way which enables your Will to be prepared, and executed, in a valid way. Please give either myself, or a member of my team a call on the number below, to discuss further.