The Law Society and the Ministry of Justice have been examining the difficulties faced by members of the public regarding the making of Wills and Lasting Powers of Attorney during the coronavirus epidemic.
Current laws around the signing of wills have been in place since 1837 which provides that, with the exception of Military Wills which are privileged, a Will must be signed by the testator and two independent witnesses to be valid.
Lasting Powers of Attorney must be certified by an independent person and each party to the Lasting Power of Attorney must have their signature witnessed.
Official advice regarding self-isolation and social distancing are particularly important for elderly or ill persons however this presents complications for this particular group of people who may be more likely to be thinking about preparing a new Will or setting up a Lasting Power of Attorney.
Military Wills are governed by section 11 of the Wills Act 1837 which gives them a privileged status. Members of the armed forces are able to draw up a will quickly when they do not have the time, resources or capabilities to comply with formalities otherwise needed. They are able to make either a written or an oral will and, if written, there is no requirement for witnesses to its execution.
In these uncertain times the Ministry of Justice is consulting with the Law Society about whether new laws should be brought in to open up this option to ordinary members of the public. However it is unclear whether new legislation would be revoked once the coronavirus crisis is over.
In the meantime, some solicitors are adopting the practice of signing off at the direction of a testator after going through the document with them through a window. But some advice suggests that the virus could survive on paper for up to 12 hours, so that it could be transferred from person to person just by handling the draft will.
In addition, this does not solve the difficulty of getting two independent witnesses to be present at the same time, while maintaining personal separation, especially if the testator is in isolation and unable to ask independent witnesses into the room. However, witnessing a will from the next room or through a window might be challenged as not being formally in the testator’s presence, although some very old case law (Casson v Dade 1781) suggest it may be sufficient to have two witnesses who are in line of sight though not in the same room.
Other options might be to adopt an Australian-style approach which would give judges more flexibility when deciding what constitutes a will; a European-style system where testators could write wills by hand without witnesses; and a process where wills could be witnessed electronically.
At Howells we are following the government’s guidance to reduce social contact and the recommendations issued by the Society of Trust and Estate Practitioners by deciding each case on an individual basis based on our clients’ requirements whilst keeping their wellbeing at the forefront of our service.
Our Wills, Trusts & Probate team are Dementia Friendly trained, and can support you to protect your estate and your family’s future. You can make a telephone appointment by contacting us on:
Sheffield: 0114 249 66 66
Barnsley: 0122 680 51 90
Rotherham: 0170 936 40 00
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