Whilst the majority of the country remains in lockdown due to the Covid-19 pandemic, many people are continuing to seek constructive ways to fill their time, from putting their financial affairs in order, reviewing life insurance or savings & pensions to arranging Wills and Lasting Powers of Attorney. Many legal services companies including APS Legal & Associates remain open for business as usual, albeit remotely.
You may be able to give instructions to a professional over the phone, or an online company, or conduct a video meeting, but what about signing your will?
Whilst much of the advice, document drafting, checking, approval, etc can be done remotely, Wills and Lasting Powers of Attorney, still require ‘wet signatures’ and those signatures are also required to be witnessed by independent witnesses. This can prove to be a logistical difficulty when adhering to social distancing rules.
A will is not valid if it is not correctly signed and witnessed.
The current law requires that a will must be signed in person, in the physical presence of 2 independent witnesses (aged over 18), who must also sign to confirm that they have witnessed the signing. Witnesses cannot benefit from the will (or be a spouse or close family of a beneficiary).
Social distancing makes it difficult to meet with 2 independent witnesses, who are not members of your household, or your close bubble.
So how do you get your will signed?
- Read and check your own will in advance. Make sure you are happy that that the contents are correct and that you understand them. Tell the witnesses you have done this.
- Make sure your witnesses can see and hear you but from a safe distance.
- Bring your own pen. Do not share pens and keep any passing of documents, etc to a minimum.
- Your witnesses are not required to read your will, only to watch you sign and then sign themselves.
- After signing, step away from the will and allow each witness to sign individually, adhering to social distancing.
- Your professional will writer can also act as a witnesses and once it has been signed, can confirm that your will has been properly signed, completed and that it’s now valid.
The regulations for wills made during lockdown may be stricter. A professionally drafted will is always recommended.
Once signed, make sure that you keep your will in a safe place, and that your executors know where to find it. Off-site secure storage facilities are available and also registration with Certainty, the national will register, to assist finding your will.
In September 2020, the Government introduced legislation to permit wills to be witnessed by video link. The process is a little more complicated than it sounds and should only be used as a last resort. This new law is a temporary measure, and lasts until the end of January 2022. You should seek professional advice to ensure that the right procedures are followed and all the right safeguards are in place.
What happens if your Will is not correctly signed?
One of the reasons why Wills can be challenged after death is that the Will was not signed or witnessed correctly meaning that it is deemed to be invalid in which case either a previous version Will could be used, or the estate will have to be dealt with as if the client had died intestate (without making a will).
The challenge may not just come from family members, but from the Probate Office who could reject the will for being fully or partially invalid when it’s submitted to apply for a Grant of Probate.