Making a Will during the Covid-19 pandemic - Boodle Hatfield

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27 Jul 2020

Making a Will during the Covid-19 pandemic

Advances in technology have been invaluable during the lockdown brought about by coronavirus but, until recently, making a Will could not be done digitally.

The requirement for two independent witnesses to be physically present has caused difficulties with social distancing in place, particularly for those shielding or self-isolating. In recognition of this, the government are now introducing measures to relax the signing formalities for a limited period in England and Wales. These fall short of a fully digital process but new legislation will permit virtual witnessing of both Wills and Codicils via live video-link. This will be back-dated to 31 January 2020 and continue to apply until 31 January 2022 unless shortened or extended in line with other Covid-specific procedures.

However, the advice remains that wherever possible, Wills and Codicils should continue to be executed in the conventional way, ie with two independent witnesses present in person with the will-maker. It is acceptable for this to be done with the parties a short distance from each other, whether outside or in adjacent rooms, or through a window or open door of a house or vehicle. Wills and Codicils can be validly executed within existing law as long as all parties have a ‘clear line of sight’ of each other throughout the signing process.

Video-witnessing should therefore be a last resort for those cases when there is no other option for getting a Will signed. The government have issued guidance on the steps to be followed. All parties need to be present at the same time by way of a two or three-way live video link. The witnesses must be able to see the will-maker signing the document, not just their head and shoulders. The Will/Codicil then needs to be taken or posted to the witnesses to add their signatures, again via further live video session(s) with clear sight of the witness signing. Electronic signatures and counterpart documents are not permitted and all sessions should be recorded if possible. A special ‘attestation clause’ explaining that the Will has been witnessed virtually is advised and further guidance is expected to follow from professional bodies. This more convoluted and long-winded process carries more risk of the Will being ineffective, e.g. if the will-maker dies before the process has been fully completed.

However a Will is signed, the basic formalities must still be observed, ie the will-maker must understand what they are doing and not be unduly influenced by anyone; witnesses should also have the requisite capacity and must not be beneficiaries or spouses/civil partners of a beneficiary. Professional advice should ideally be sought in all cases.

We continue to work with our clients to explore all options to carry out their wishes and so please contact your lawyer if you need to sign a new Will or Codicil.