This is one of the trickier questions to answer! English law imposes a strict requirement for a will to be signed by the person making it, in the presence of two witnesses – i.e. all in the same room at the same time, or at least in the line of sight of each other. If that process is not followed, then the will is not valid. See below some questions we have been asked in order to clarify who can witness a will during lockdown.
Can my family witness my will?
Usually, no, your family must not witness your will. The witnesses must be independent; if they are beneficiaries under the will, then the gift they stand to receive will not take effect, which is certainly something everyone wants to avoid.
In most cases, this rules out a witness being someone in the same household. There is the added problem that even if a close relative of somebody benefitting under the will witnesses it, the will might later be challenged on the grounds that the person making the will had been unduly influenced into making or signing it.
Can my carers witness my will?
More often than not, professional carers are under strict instructions from their employers not to witness wills and the same goes for medical staff in all situations. This means that your carer, even though he or she may be the only person regularly visiting your household, will not be able to witness your will. Remember that you also need two witnesses and most people only receive care from one professional carer at a time.
Is there a solution?
Many lawyers are grappling with this issue. The law requires physical presence between the person making the will and the witnesses, but getting together now may breach social distancing rules, and is almost certainly a significant health risk to all parties. The witnesses watching the will signing by video conference is not sufficient, because the parties are not in each other’s presence.
An option which appears to work is for the person making the will to sign it while the witnesses watch through a window. The window needs to be big enough for the witnesses to clearly see the will being signed. If the witnesses are also from different households, they too must take precautions and obey the social distancing rules whilst in each other’s presence.
The difficulty with this is then passing the will to the witnesses to sign. You might achieve this by placing the will on the window sill, or posting outside the house via a letterbox. The witnesses (taking precautions such as wearing gloves and using their own pens) then each sign the will in the view of the person making the will, and in the presence of the other witness. For clarity, all parties must remain in a position so that they can see each other make their signatures. The will should then be valid, but the procedure may attract some strange looks from neighbours!
If done with care and careful planning, this can all be carried out without breaching the social distancing rules and without putting any party at risk.
What have the Government decided?
There are ongoing discussions between professional bodies such as Solicitors for the Elderly, STEP (Society for Trust & Estate Practitioners) and the Government to see if the long-standing rules for signing wills can be temporarily relaxed during the lockdown. However, the rules were created to prevent fraud, and any temporary solution proposed may bring a risk that fraud could occur.
We are still drafting wills for clients and will take into consideration each situation carefully, on a case by case basis. Please contact us if you would like a will drafting or if you have concerns about the signing of a will we have drafted for you, which you haven’t yet signed.