Social Distance Execution

Whilst the title to this blog no doubt conjures up in your mind something far more sinister, this article discusses the issues surrounding the execution of last Wills and testaments in the challenging social distancing world that we live in. Considering whether a Will has been executed properly is particularly interesting in determining whether it can be challenged.

For a Will to have been executed properly, it must have complied with Section 9 of the Wills Act 1837. Section 9 confirms that no Will is valid unless:

1. It is in writing and signed by the person making the Will (Testator) (or by some other person at the direction of the Testator – for example if he/she is unable to use his/her hand to sign the Will);
2. It appears that the Testator by signing the Will intended to give it legal effect;
3. The signature of the Testator is made or acknowledged by the Testator in the presence of two or more witnesses at the same time; and
4. Each of the witnesses also signs the Will to confirm that they witnessed the Testator’s signature.

The words ‘in the presence of’ and ‘at the same time’ have been highlighted above as these words are causing practitioners the most difficulty in terms of executing Wills when the current social distancing measures are taken into account and the fact that beneficiaries to Wills cannot act as witnesses to the Will.

Social distancing and Will execution

There has been much speculation as to whether the words ‘in the presence of’ can be met by the witnesses viewing the signature of the Testator taking place over Skype, Zoom or some other video link platform. The current consensus is that the wording of Section 9 does not allow this to happen. This, however, is at present speculation and I suspect that this issue will be tested in the Courts before long.

Our expert Wills and Probate team are currently finding that our clients are using novel ways to execute Wills. For example, they are signing Wills on the car bonnet of a friends drive whilst their friends look through the window. This as a proposition was tested in the Courts in 2011 in the case of Re Clarke when the witness to a Power of Attorney was separated from the person effecting the Power of Attorney by a glass door.

To deal with this issue, other jurisdictions have started to effect emergency legislation. By way of example, in Jersey they have effected legislation valid until 30th September 2020 initially that will allow parties to execute their Wills utilising video link. There does not appear to be any sign of similar measures being implemented in the UK as of yet and, given that Boris Johnson has now started talking about plans to lift the lockdown measures, there may now not be a pressing need for such a change.