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Making a will in light of the past few months has never been more important to so many of us. That is why it is important to make sure that even when shielding or socially distancing, you are making a Will that is valid and will stand the test of time. Will disputes tend to arise when you are no longer around to speak for yourself, that is why it is important to make sure you get it right the first time, covid-19, or no covid-19.
The general rule is that your Will should be witnessed by someone who is not named in your Will as a beneficiary. It should usually be someone who is not a spouse or other family member, as this will invalid any inheritance you wish to leave to them. It therefore needs to be someone you deal with at arm’s length. This could be your solicitor, your neighbour or even your postman (based on all of the online shopping that has been going on the past few months, your bond with them may now be so strong that you have decided to leave them a little thank you gift, in which case, not them!).
Your witness should watch you as you are signing your Will (otherwise what does being a witness even mean?!) and they will then also sign confirming they have witnessed you do it. This gets trickier during lockdown or when social distancing rules are in place. How do you witness a Will when you cannot be close to the person signing?
In some countries like Australia and Scotland, they have passed emergency legislation to make it easier for Wills to be made whilst covid-19 continues to keep us all at a distance. Here in England and Wales, there has been no such change, although it is coming. Will making is still governed by the Wills Act 1837. Noting the time the law was made, it was never envisaged that the population would find itself in a situation where it was possible to see each other through computer screens and potentially have the need to make a Will through such an avenue. Therefore, long story short, signing your Will on a Zoom call (other video conferencing platforms are available) with your witness watching you in the comfort (or discomfort) of their home is a big no no (for now). The legal position is still that your witness should be physically there with you when they watch you sign.
It is obviously still important to keep social distancing, so how do you get your Will witnessed properly? One option is to see whether you are able to book a (socially distanced) face to face meeting with your solicitor where they (or a colleague) could witness for you. Poole Alcock’s offices have the means to ensure that this is done in a safe environment. Alternatively, you could ask your neighbour (or postman if you really want to) to witness for you. Whomever is ultimately your witness needs to ensure that they have an uninterrupted line of sight with you the entire time that you are signing your Will. This means that in the situation where your neighbour is witnessing for you, you cannot sign your Will and then pass it over the fence for them to witness, if they haven’t actually watched you as you were doing it. To avoid any potential challenges down the line, it is important to have your Will witnessed in an open space with clear visibility.
The important thing to remember is that if there is any chance that your Will has not been signed or witnessed properly, the chances of your Will being contested in future increase tenfold. This means that potentially the gifts that you intended to make to certain people will not end up being made or will be diluted to make room for someone you never intended to leave anything to. Family rifts are not uncommon in contested probate matters and to make sure the peace is kept long after you are gone, get it right the first time.
Our Litigation team deals with defending and also bringing invalidity of Will actions. There are a number of other reasons why the validity of a Will can be questioned (look out for more articles on this). If you require our advice on bringing or defending a claim against a Deceased’s Estate, get in touch with us now on 01270 625478 or contact us via our online form.
The government announced on the 25th July 2020 that they will be introducing legislation to allow for people to use video-conferencing for the witnessing of wills. Take a look at the guidance at https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing.
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