The Current Position with Regard to Wills

As you can probably imagine we have seen a spike in our work, owing to the current virus crisis within England and Wales.

A number of people have telephoned or emailed us asking for clarification as to the position with regards to the formalities for a valid will, as a number of people wish to take the opportunity of either a new will, or indeed to re-visit their old will and produce a more up to date version.

The current law and regulations to will making have not yet changed. Although there is discussions going on with the Ministry of Justice about some emergency legislation whilst this virus continues, as to the possibility of changing some of the formalities. Should that occur we will put the appropriate article on our website.

However, please be clear, that the regulations for making a will remain as before.

People have asked us whether they can make an email signature to a will. Unfortunately, a will cannot be created by email.

The English law requirements for executing a will, and are strict, and the Law Society has communicated the pressing need for relaxation of these rules to the Ministry of Justice, but these have not been activated.

The testator (the person making the will) must sign the will in the physical presence of two witnesses, who attest the testator’s signature, by signing the will themselves.

An e-signature cannot be used by the testator to sign the will, and it cannot be witnessed via video call or other digital means.

Please remember that beneficiaries and their spouses must not act as witnesses, as this will preclude them from inheriting under the provisions of the will.

The current case law on the position suggests that the testator (the will maker) and the witnesses, being in each others line of site would be enough to satisfy the requirement of ‘presence’. It could therefore be possible to maintain social distancing practices while executing the will, by having the witnesses in an  joining room, as long as they are visible to the testator and vice versa.

It has also been suggested that witnesses through a window could work.

An important practical point is to keep a note of who is present , where and what capacity they are acting. This record will be useful evidence, should the will be later challenged on the grounds of validity, or of undue influence being exerted on the testator.

For testators with connections outside England, there could be further alternatives, in some cases, for the will to be valid in England it is enough that it is valid under the law of another jurisdiction. For example France and other civil law jurisdictions, recognise hand written wills signed by the testator, without witnesses, giving more a flexibility where those circumstances apply.

If we can be of assistance please do not hesitate to contact us.

Tel: 01684 291469

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