Corona Virus COVID-19 Attestation of Wills

We have received a number of telephone calls and correspondence from intending clients saying they believe that the witnessing and rules relating to the execution of wills, has been relaxed in view of the current pandemic. 

Due to the current Corona Virus pandemic many industries are finding themselves facing practical difficulties when it comes to carrying on their business, among them are Will Writers and Estate Planners. 

As you are probably already aware most firms, including ourselves, have taken the Governments guidance, and we have switched to working remotely for the time being, and we have a one-person policy at the office.  

However, we are working as before and work at full capacity in these difficult times. 

We have indicated to new clients that we will guarantee a draft will being sent to them within 24 hours, from their initial instructions. Once we have confirmation that they are happy with the will, we will ensure that within 24 hours an engrossed Will is delivered, or sent to them for execution 

We appreciate the fact that these wills, to many families, have now become very important, as they always have. 

What about signing the will? 

As we have previously indicated in articles published on our website, the situation remains the same. We have had many people ringing and saying they have heard that only one person needs to witness the will, that the person who witnesses the will does not have to see the testator (the person who is making the will) sign etc etc. 

It is all well and good taking instructions remotely, but this is just the first step. 

The next hurdle is getting the will properly signed, and unfortunatly this hurdle is much harder to overcome.  

We have also had people advising us that they believe, if they watched the testator sign the will through Skype, or through FaceTime or Zoom, this means that they have seen the will being executed. We regret to say that the answer to this NO 

Currently, to be valid, a will must be meet all the requirements of Section 9 of the Wills Act 1837. Amongst those requirements, is the need for the testator to sign or acknowledge his signature in the presence of at least two witnesses, together at the same time. It is also valid for someone else to sign on the testators behalf, but again this must be done not just at the testators direction, but in his or her presence, and in the presence of the witnesses. 

The problem word is ‘presence’. The Law Commission looked at this issue in its consultation paper ‘Making a Will’ in 2017, and confirmed that, as the law currently stands, witnesses must be physically present. 

To quote them: 

Whether the parties are in each others presence, is currently decided with reference to whether they are in the same room, and whether there is a line of sight, that rule would be difficult to apply where a witness is said to have had a line of sight to the testator via an online video conference. 

There has been no such case. However, it is unlikely that the current law governing witnessing, extends to witnessing via video conferencing, because ‘presence’ has been held to involve physical presence’ (caselawChalcraft’ (1948) P222. J). 

It is possible that at some point in the future, we will see the law adapting to allow remote witnessing and e-signatures on wills. But at this moment in time, we can only act to the established law. 

In a separate article, we will give some practical suggestions in the current pandemic situation.