Executing A Will During Lockdown

The lockdown prevents meeting in person and to do so would be, well, ironic. With today’s technology, one might hope that Microsoft Teams or Zoom could be used but alas not. Here is what you need to know about executing a will during lockdown.

A will is valid and can be admitted to probate if:

• it is in writing and signed by the testator
• it is signed by some other person under the testator’s direction
• the testator must intend to give effect to the will
• the signature is made or acknowledged in the presence of two or more witnesses who are present at the same time
• each witness either attests and signs the will or
• acknowledges their signature in the presence of the testator (but not necessarily in the presence of any other witness)

A testator must also have capacity to give instructions for their will, know and approve the contents of their will and not have been unduly influenced into making the will.

The problem with instructions by telephone or video conference is satisfying the identity of the testator and establishing testamentary capacity. A face to face meeting permits this more easily. One potential solution might be to obtain a formal assessment of capacity before instructions although this could have similar hurdles. Assuming instructions are given by telephone or video call, it would be sensible to confirm that the testator is alone and free of any potential influence thereby alleviating the risk of validity being challenged.

Many will simply choose to prepare their own will. However, homemade wills often give rise to validity challenges.

A beneficiary under a will, cannot act as a witness. That would normally exclude close family members, which is most inconvenient given they are the ones people are locked down with.

An alternative method for a will to be witnessed needs to be found. A witness must see the testator sign it and the testator must see the witnesses sign the will. Case law suggests that the presence must be physical.

The process for executing a will which could therefore be adopted is:

1. Instructions provided by video conference and in writing.
2. The instructed adviser needs to identify testamentary capacity and should document their findings.
3. Confirmation the testator is alone and not being influenced is necessary.
4. A process for signing and witnessing needs to be established, which could include seeking a neighbour’s support over the garden boundary or through a pane of glass where there is a clean line of sight.

The Law Society in Scotland has recently relaxed the rules so that a solicitor can witness a client signing each page of their will over video link so maybe, if the lockdown and social distancing continue, it may also change in England and Wales.

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