Unsurprisingly, the COVID-19 outbreak is leading many people to consider their Will (or in many cases, the lack thereof). There are several difficult issues to deal with when attempting to create a new Will while under isolation or social distancing conditions.
A solicitor advising on a Will needs to be satisfied that the person making the Will – the testator – has sufficient mental capacity to do so. A Will made without capacity has no legal force. Under normal circumstances, the solicitor will make an assessment when meeting the client in person. If there is any doubt, they may request that the client is assessed further by their GP or another specialist. However, if the client is under isolation, there could be difficulties in making a proper assessment. They may carry out a conversation over the phone, or even by video conferencing methods, Whatsapp video call etc. For many cases this will be sufficient to confirm capacity, in particular if the client is already known to the solicitor. If there is doubt, the solicitor may refuse to act further, or may require further supporting evidence from a health professional.
Are there any solutions for Execution?
A valid Will must be signed by the testator in the presence of two witnesses, who must also sign the Will. It is commonplace for the solicitor to act as one of the witnesses, although by no means a requirement. The witnesses cannot be mentioned in the Will as beneficiaries, or be the testator’s spouse or civil partner. If the testator is in isolation and the only other adults in their proximity are beneficiaries, a spouse or civil partner, executing the Will could prove difficult. There is no legal precedent for using Facetime, Zoom or Whatsapp video call as a method of witnessing the signing of a Will. Indeed, the Wills Act 1837 requires that it is signed in the “presence” of the witnesses, and a video call is not, under existing law, considered being in the testator’s presence. One of the possible solutions, is for the witnesses to stand on the other side of a window, witnessing the signing of the Will by the testator, who then passes the Will through the letterbox to the witnesses, and they sign as well. However, it will not help in all situations, in particular for a testator in hospital. Furthermore, the virus particles can live on paper for a period of time, so passing the paper around may not be good advice.
However, it is understood that the Ministry of Justice is in discussions with the Law Society about changing the requirements for executing and witnessing a Will, and we will issue updated guidance should there be any further developments.
Please contact me by email to firstname.lastname@example.org if you wish to create or update your Will.