Alongside the many other legal issues that Covid-19 has thrown up is the issue of how to correctly (and safely) execute a Will at the current time. The Covid-19 crisis means that many of our clients are considering changes to their Will, or encouraging their parents to review their Wills and update them if appropriate. There will be others who have not made a Will before but are now seeking to do so at short notice.
For a Will to be valid it must comply with the following formalities (contained in the Wills Act 1837):
- The individual making the Will (called the Testator) must be over the age of 18 and have the requisite mental capacity to make a Will.
- The Will must be in writing. There is no requirement for it to be typed and so a handwritten Will is acceptable, although writing in pencil should be avoided.
- The Will must be signed by the Testator, or if they are unable to sign then by another person in the Testator's presence and at the Testator's direction
- The signature of the Testator must be made or acknowledged in the presence of at least two witnesses present at the same time.
The only exception to these rules are for those on military service, section 11 of the Wills Act 1837 providing that 'that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate' without any formalities.
The formalities are strict and a failure to comply will result in the Will being invalid. However, given the governments advice about social distancing and, more particularly, the advice for those in the at risk category to self-isolate, complying with the final formality is difficult if not impossible for a large proportion of people at present. The witnesses should not be members of the Testator's family and the witnesses and their spouses or civil partners cannot be beneficiaries in the Will. in the circumstances how can a self-isolating person safely organise two independent witnesses to come into the home and witness their signature? The matter is in need of urgent attention.
We have learned today that the Society of Trust and Estate Practitioners is in discussions with the Ministry of Justice in relation to the implementation of some emergency legislation which may dispense with the need for physical witnesses, and so hopefully we will see some reforms introduced shortly.