These are extraordinary and uncertain times. Many people are now anxious to have a Will in place that reflects their current wishes. Despite social distancing, Wills can be drawn up quickly and efficiently with expert advice.
Care needs to be taken at all stages of the process and in particular when it comes to signing Wills to ensure they are valid. Social distancing makes it all the more important to obtain well considered advice when drawing up Wills.
It is important that clients have mental capacity to draw up their Wills and they are free from undue influence. Voice or video calls to discuss wishes on how best to provide for loved ones and appropriate attendance notes will help mitigate the risk of Wills being challenged.
Drafting your Will
Drafts can be sent by email. Subsequent correspondence by email or phone will ensure Wills meets clients’ needs.
There is a specific procedure that needs to be followed for signing Wills for them to be valid. The rules are set out in the Wills Act 1837.
The area that causes the greatest difficulty due to social distancing is signing Wills. Amongst other requirements, Wills are not valid unless:
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either—
- attests and signs the Will; or
- acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
The ‘lockdown’ has meant that the ‘presence’ requirement is important and has been the topic of much debate. There may not be two other people in the same household to act as witnesses. Even if there is, they cannot be beneficiaries under the Will. This can cause some issues.
In England and Wales there has been no relaxation of the rules and it is not possible to remotely witness through video calls.
However, this does not mean it is not possible to validly execute Wills at this time or at least minimise the risk of challenge before the Will can be signed in the ‘normal’ way once restrictions are lifted.
Should you require any advice or assistance on this topic, please contact Hilesh Chavda.