To make a valid Will, it must fulfil vital legal requirements, including that it must be signed by the testator (the person making the Will) and witnessed by two independent witnesses. These witnesses must have a “clear line of sight” to the signing of the Will document.
The Coronavirus/Covid-19 pandemic, subsequent nationwide lockdown and restrictions on gatherings of people have therefore caused significant problems for testators. How can you get a Will witnessed if you cannot be in the same room together?
The pandemic has understandably reminded many people that life is unpredictable, encouraging many to start putting their final affairs in order. As time has gone on and everyday life shows little sign of returning to normal, testators have become increasingly creative in their efforts to make a valid Will while complying with social distancing guidelines. For example:
- Getting the Will witnessed through a window
- Signing the Will outside, such as in a garden or over the bonnet of a car
- Witnessing the Will from an adjacent room
Wills made during the pandemic via these creative methods have been coined ‘lockdown Wills’.
However, for at-risk groups who have been shielding or self-isolating (such as people with serious health conditions or front-line workers who have been exposed to the virus) it has been even harder to get a Will validly witnessed. It is cruelly ironic that the people Covid-19 puts most at risk are the people who have found it the most difficult to make a Will.
Thankfully the rules on witnessing are all set to change from September 2020. The Government has recognised the issues and is planning to make Wills witnessed over video link software such as Zoom or FaceTime legal, enabling everyone to make a valid Will regardless of personal circumstances. The reforms will also be backdated to 31 January 2020, so anybody who was forced to make a Will in this way during lockdown can now have peace of mind that their Will is valid.
What makes a valid Will?
Wills must be made according to strict legal rules or they may be invalid. If a Will is found to be invalid by a court after the testator has died, it is likely that their final wishes will be ignored. These rules are:
- The Will must be in writing and signed by the testator (or by someone in the presence of the testator as directed by them)
- By signing the Will, the testator intends to give it legal effect
- The testator’s signature was made in the presence of at least two witnesses
- Every witness signs the Will (or someone signs on their behalf in the presence of the witness as directed) in the presence of the testator
There are other vital requirements, such as:
- The testator must have the mental capacity to make a Will (for example, a person with dementia may be unable to make a Will, depending on their symptoms)
- The testator must not have been forced or coerced into making the Will
- The witnesses must have adequate mental capacity
- The witnesses must not:
- Be blind
- Be a beneficiary of the Will (or the spouse/civil partner of a beneficiary) – this may not invalidate the whole Will, only the witnesses’ gifts
- Be a child under age 18
When witnessing the Will, the witnesses must have a “clear line of sight”. Traditionally, the witnesses would physically be in the same room as the testator when they sign the Will.
Video link Wills to become legal
The rules on witnessing are to be extended to validate Wills made via video link software such as Zoom or Facetime. The law will come into effect from September 2020 and will be backdated to 31 January 2020 so that any Wills made via video link during the nationwide lockdown will be valid. The rest of the legal requirements needed to make a Will (such as mental capacity requirements) will remain the same.
The exact type of video link software used will not matter, only that the witnesses have a “clear line of sight” to the signing of the Will. This means that the video and audio quality of the link must be good and everyone involved should take extra steps to make sure the witnesses can see. For example, the testator should hold the Will document up to the camera at the start of the process and ask whether the witness can see before signing.
Making a Will via video link – the process
To assist testators and the solicitors, the Government has published detailed guidance about how to make a Will via video link. The key points include:
- The Will should include a statement from the testator stating that the document has been witnessed remotely
- The witnessing should occur in real time, i.e. the witnesses should not be shown a pre-recorded video of the testator signing the Will
- The entire process should be recorded
- The witnesses do not have to be in the same room and can be connected to the process via separate video links.
- The witnesses must still sign the original Will document (a certified copy will not do) and must therefore be taken to each witness in turn. This means that the process will likely need to be conducted in several stages with the video link being terminated and resumed for each signing. However, the entire process should ideally be completed within 24 hours
Could a lockdown Will be challenged in court?
Because the concept of a ‘lockdown Will’ is so new, it remains to be seen whether any high-profile disputes will arise over the validity of a Will made via video link or, for example, through a window.
In respect of Wills made via video link, so long as the process has been recorded and the Government’s guidance carefully followed, there is likely to be little chance of a successful legal challenge being made. However, anyone who made a Will via video link before the Government changed the law and published guidance may want to consult a Will solicitor to check that they followed the right process.
Wills made in other situations may be more open for challenge. For example, if a Will was made with the witness standing in the next room, someone could argue that they did not have a clear line of sight. In these cases, the witnesses should be prepared for the possibility of being asked to give evidence in court in the future (even though it may be a remote risk). Having a qualified solicitor present at the Will signing may also indicate that the Will was validly executed (unless the challenger can prove otherwise, which is likely to be a difficult task).
Get expert advice about making a Will during the Covid-19 pandemic
At hpjv, our dedicated Will solicitors in Newport can provide all the advice you need about making a Will during the Coronavirus/Covid-19 pandemic. We offer a free 30-minute consultation for all new clients which we can conduct via phone or video link wherever needed.