Covid-19: How the virus is affecting the witnessing and signing of wills

Will-writing is one of those things that many people have on their to-do lists, but the current Covid-19 crisis has understandably served to focus minds on doing it. According to the Financial Times, the coronavirus outbreak has prompted a surge in demand for urgent advice on will-writing, particularly by older people, and for Lasting Powers of Attorney (LPAs). The Law Society has further reported that the volume of new wills has recently doubled as people rush to put their affairs in order.

Legal requirements

The UK is in a protracted state of lockdown which could potentially last for several months. The combination of strongly worded official advice on self-isolation and proscriptive social distancing measures being implemented creates significant practical difficulties in having a will validly attested. In particular, the requirements of English law relating to wills serve to exacerbate the problem.

For a will to be legally valid under the Wills Act 1837, it must be: in writing; signed by the person making it (testator), or by another person in their presence and by their direction; and signed in the presence of two or more independent witnesses present at the same time, who must attest and sign it.

There are further legal requirements in relation to witnesses: they should not be a beneficiary nor should they be married to a beneficiary, otherwise the beneficiary will lose their entitlement to any gift or share of residue left to them under the terms of the will.  Notwithstanding these caveats, the will itself remains valid.

Practical solutions

Providing will instructions and obtaining one to one advice from your legal advisor is still possible via a virtual meeting such as telephone or videoconferencing and of course email.

Attestation by two witnesses being present simultaneously, but maintaining personal separation, is particularly challenging, especially if the testator is in isolation and cannot ask independent witnesses into the room. But there are potential practical solutions. For those still at work and following social distancing requirements, one option is signing off at the direction of a testator after going through the document with them through a window, or maintaining 2 metres distance – although some advice suggests that the virus may potentially survive on paper for up to 12 hours, and so could be transferred from person to person by handling the draft will, so I suggest wearing gloves and using your own pens.

For those in lockdown at home things are more difficult. Potentially, neighbours (i.e. a couple or two from same family) may be happy to witness signatures over the garden wall or standing at the front door, and then follow the procedures as outlined above.

Currently, it is too early to predict the potential impact on applying for or registering LPAs at The Office of the Public Guardian. Although government departments are continuing to operate, significant challenges inevitably exist. Among those most affected, HMRC was already slow in responding to correspondence before the Covid-19 crisis. Some of the recent emergency announcements made by the Chancellor have placed a significant extra burden on its workload.

This article does not constitute legal advice and families and individuals are encouraged to take specific legal advice on the scenario they face. This update is a statement of the current position as at the time it is written.