With the current Covid-19 situation, understandably more and more people are thinking proactively about getting their affairs in order, and perhaps making a will is one of those things that once was something to think about in the future, but is now becoming a “must do”.
However, there are strict guidelines and rules about the creation and execution of a will, so is this possible during lockdown?
Usually, if a solicitor is preparing your will, they would prefer to see you in person to take instruction. However, there is nothing that prohibits this from being done via electronic means, whether this is by email, telephone or video-link. Whichever method is used, the solicitor will need to be able to confirm your identity, and be sure that you are not being unduly influenced or pressured into your instruction, and also that you have the capacity to give the instructions.
Your solicitor has the duty to act in your best interest, but the risks to a testator and the beneficiaries of an invalid will are obvious and significant.
The Law Society has given guidance, which suggests that the best way to approach this may be to take initial instructions remotely to begin with, to allow the commencement of the drafting, and once the current crisis has passed, meet clients in person to confirm the original instructions before execution.
Which brings us nicely to the matter of execution. A will is not valid unless executed in line with legislation. The testator must sign the will, in the presence of two witnesses, who must also be in the presence of each other.
The Wills Act 1837 states that in order to execute a will, a signing witness must be physically present. That is, those who are signing the will (the testator and their two witnesses) must all be physically together, and this cannot be done via video-link or other electronic means.
The Solicitors Regulation Authority has suggested that clients who need witnesses to execute their wills could ask neighbours who could possibly execute at a distance. Your solicitor should be able to provide you with guidance on how this can be done properly. Solicitors are being encouraged to oversee the witnessing via video-link to ensure that this is carried out correctly, and to keep records.
There is also the option available for wills to be drafted in such a way that the attestation clause takes into account the current circumstances, however with the situation changing on an almost daily basis, the legal requirements will need to be checked carefully.
The Law Society, together with the Ministry of Justice is holding this under review, to see if any requirements can be amended in light of the current situation.