One of the fundamental requirements of making a valid Will is that the testator (the person who is making the Will) has their signature witnessed by two people who don’t have any interest in the will. If this rule and the correct Will-signing procedure is not followed, the Will can be invalidated.
This currently creates a number of practical problems, given the unprecedented COVID-19 social distancing rules in force and the recent huge surge in Will making, which has been reported.
Current Government advice states that gatherings of more than two people (who are not living in the same household) are not permitted. It may therefore be tempting for anyone making or updating their Will to simply ask their spouse, civil partner or close relative living in their housed to act as witnesses. Yet, these categories of people (or any beneficiary named in the Will) should not act as witnesses.
This may cause problems for many people who are anxious to make or update their Will. Those who live on their own or are self-isolating may also not be able to use friends or neighbours to act as witnesses, given the requirement that people remain at home, except in very limited circumstances.
Witness independence in Will making is important. Yet, this is likely to be difficult to achieve. However, there is promising news, the Ministry of Justice is now looking at temporary measures, which may resolve this COVID-19 related issue.
Any changes to the Will making procedure is a significant step, because the law which governs how wills are signed is embodied in Section 9 of the Wills Act 1837 and this has not changed for many years.
Any temporary Will signing provisions which are introduced by the Ministry of Justice may reflect Will making practices from other parts of the world, or those available to the Armed Forces (which have special provisions for making Wills).
If any changes occur, then these should be announced by the Ministry of Justice in due course.
However, until then, it is essential that anyone signing a Will adheres to the current rules and guidance. Otherwise, they could fall foul of current rules before a new temporary system is introduced. It is therefore very important to follow any guidance received from their solicitor about how to sign their Will, until they are advised about any changes.
If you have any queries with regard to the validity of a Will or the proposed changes, contact our Will dispute solicitors who can assist. Email us at email@example.com or call 01202 786152.