Witnessing wills over the garden fence Photo by Melinda Gimpel on Unsplash

What the lockdown means for independent witnesses when drawing up a will

The current coronavirus lockdown is restricting the way people normally meet to organise their affairs. Under the 1837 Wills Act, wills need to be in writing, and be signed by the person making the will in the presence of two independent witnesses. The witnesses must be present at the same time.

Liz Smithers, a partner in Clarke Willmott LLP’s private client team specialising in Wills, Trusts and Estate planning, said:

“Probate practitioners are having to adapt rapidly to challenges arising as a result of the corona virus pandemic.

“The Law Society is currently in discussions with the Ministry of Justice to see if these rules can be relaxed at a time when social gatherings of more than two people are deemed unacceptable.

“It is likely the current system needs to change if demand is to be serviced. In the meantime, we need to be more creative and look at slightly less conventional ways of witnessing documents.”

Witnessing through a window

In the past a solicitor would arrange for the testator and the witnesses to be in a room together and the will would be properly signed by all the parties.
“Understandably the threat of this awful disease means that many people may well be thinking about their future and wanting to put their affairs in order.
“But with the government instructing people to stay indoors and avoid close contact, there is panic and confusion because a will must be witnessed by two independent witnesses to be in compliance.
“Although it may seem unorthodox, we are advising clients that it is perfectly okay to have documents witnessed by their neighbour over the garden fence or through a window.
“Or, if you live in a block of flats, you might ask the concierge to remain behind his or her desk and have the other witness – perhaps a fellow resident – stand on the other side of the foyer.
“As long as everyone can see everyone else, then the will is valid.”
 However, Liz says under no circumstances should a will be witnessed by a person who is named as a beneficiary in the will or married to anyone named as a beneficiary. To do so would make the gift to that person invalid.
 
The Law Society has lodged a number of possible solutions, including the use of electronic witnesses or a system that allows the testator to write their will themselves, by hand, without the presence of witnesses.
 
A Ministry of Justice spokesperson said:
“This is a delicate area of law and we absolutely must continue protect the elderly and vulnerable against potential fraud. While there are no current plans to change the law, we will consider all options and keep this under review during the COVID-19 pandemic.”