Executing Wills – Challenges under Covid-19

In the current Covid-19 lockdown we are receiving increasing enquiries and instructions from clients in relation to their Wills.  The dramatic change, uncertainty and risk thrust upon our everyday life has encouraged and given many people the space to concentrate on what (and who) matters to them.  This has led many clients to consider how, if the worst happens, their family would manage and how their assets should be dealt with.

Lockdown and social distancing add additional challenges to executing Wills, which in many jurisdictions (including the UK) requires two independent witnesses to be present.  This has proven very difficult during lockdown where we are not permitted to mix with other households, particularly for the more vulnerable members of society who are advised strictly to self-isolate.

Jersey, Australia, New Zealand and the Canadian provinces of Ontario and Québec have introduced temporary measures to extend the execution formalities so that a Will can be witnessed via video link, with the witnesses in different locations to the testator.  Scotland already allows Wills to be witnessed by videoconferencing. So far, England has not followed suit.  The Parliamentary Under-Secretary has recently informed the House of Commons that the constraints of the Covid-19 situation must be balanced against the important safeguards in the law to protect elderly and vulnerable people in particular against undue influence and fraud. However he also confirmed that the government was reviewing the case for reform of English law on the execution of Wills, the legislation for which dates back to 1837.

Sunday night’s address by the Prime Minister announced a provisional plan for easing lockdown gradually, with detailed guidance to follow on Wednesday. However, it was made very clear that enforced social distancing will remain in place for the medium term at least.

During the current crisis we strongly recommend that testators comply with social distancing in order to safeguard themselves and others and ensure “contactless” execution of their Wills. By this we mean testators should ensure that their witnesses (who should not be family members or beneficiaries of the Will) are at least at a 2 metre distance when they observe the signing of the Will, which in accordance with the lockdown rules should ideally take place outside. After the testator has signed, the Will should be left between the testator and the witnesses, at least 2 metres away, and the witnesses collect the Will in order to apply their own signatures as witnesses. As a further safeguard, the individuals may wish to wear gloves and use separate pens, using hand sanitiser and/or washing their hands immediately after handling the Will.

In certain circumstances it may also be advisable that, where possible, those who are signing Wills under lockdown re-execute their Wills at a later date when restrictions have been lifted, in order to ensure that no questions are raised as to whether the Will was validly executed.

Please contact a member of the Private Client team if you require any advice in relation to Wills and estate planning. We entirely appreciate that certain instructions will have some urgency to them and our team is able to advise on and put new Wills in place quickly.

 

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