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Sarah Carr explains what you should know about making a Will during the pandemic.

Writing a Will is a subject many of us find difficult to broach. We spend our lives working to provide for ourselves and our families, yet there are still so many of us who have not made adequate provisions to protect all we’ve worked so hard for. The circumstances we found ourselves in recently raised a lot of uncertainties, adding a layer of complexity. COVID-19 has caused a significant jump in the requirement for Wills with a study by deVere Group reporting an increase of 76% in demand during the peak of lockdown. The main contributing factor was the very worrying increase in death tolls in the UK. Solicitors called for the government to change the law surrounding the signing and witnessing of Wills. The strict social distancing measures which were in place meant that a Will being signed in the presence of two witnesses presented quite a challenge.

What can be done in the meantime?

The procedure for a Will to be validated has been in place since 1837. The process required a Will to be signed in the presence of two witnesses and signed by those witnesses. This was also the procedure for people wishing to make changes to their existing Will. The Ministry of Justice made it very clear that any change to the rules had to be carefully balanced against the risk of fraud, and had to continue to protect those who are vulnerable. On 25 July the government announced a change to the 183-year-old rules by way of secondary legislation. The new law sees Wills being temporarily witnessed by video conferencing from September 2020 to 31 January 2022 and backdated to 31 January 2020. This allows Wills to be witnessed by video conferencing software. After the Will has been signed by the testator, the person making the will, it is then posted to witnesses who also sign the Will by video conference. Although signatures can be witnessed by video conferencing, electronic signatures are not valid, hence the need for the Will to be posted after signature. The Will is only valid once signed by all parties. Whilst the change has been welcomed by many, there is concern that such a delay in the Will being circulated to the relevant parties to be signed means that there is a risk the testator may die or become incapacitated before the witnessing process is complete, making the Will invalid. Many of us who have worked from home during the lockdown period and beyond have become increasingly familiar with the use of video conferencing. This may encourage practitioners to adopt this method of execution as standard procedure regardless of the warning that this new method should only be used as a ‘last resort’. That being said, it may be that an elderly testator, who is not so familiar, will struggle to navigate video conferencing software and opt for the traditional approach to having their will witnessed. Witnessing a Will in person (while exercising social distancing) would still be a more desirable approach to avoid any risk of time delay.

How to safely sign and witness a Will in person

The signatures of the testator and witnesses will still be valid as long as each party can see the other sign. It may be the case that this is through a window, doorway or from a safe distance outside. There is also the possibility that neighbours may be able to witness the legal document (provided that they are not beneficiaries and exercise social distancing outside).

How can we help?

If you are unsure where to get help in relation to any of the above, it is important you seek legal advice. We help to make writing a Will simple, affordable and easy. All we need is a short amount of your time to discuss your wishes. By taking the important decision to write a Will, you’ll give yourself the peace of mind that you’re safeguarding your possessions for your loved ones, and preventing them from having to deal with any unnecessary complexity at such a difficult time. If you would like to make a Will with us, then please contact us.

Wills advice and drafting tool

In partnership with Mills & Reeve LLP, we developed a Wills advice and drafting tool, available to all BMA members.

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