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Invalid Wills during the Coronavirus pandemic

View profile for Hannah Howe
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Writing a Will during the Pandemic

The recent pandemic has, unsurprisingly, seen a huge demand for people wanting to make or update their Wills. Many people have made Wills during lockdown, but reports are now coming through which confirm that Wills made or signed during the pandemic may not be legally effective. Wills that have been signed via video call, Zoom or other similar platforms have not been validly witnessed in accordance with the law, and as such, the Will may not be valid.

How to make sure your Will is valid

The signing of Wills is governed by strict rules set out in the Wills Act 1837. This Act established the rules for the making of a Will, and its provisions must be complied with in order for the Will to be valid. The Will must be in writing and then signed in the physical presence of two independent witnesses. In normal circumstances, it is not difficult to comply with these requirements. But during lockdown, Wills have been witnessed through windows, across garden fences and via video calls, amongst other innovative methods.

Witnessing Wills - what can go wrong

Unfortunately, the witnessing of Wills via video conferencing has been held not to comply with the strict requirements of the Wills Act. The rules insist that witnesses must be physically present when the Testator (the person making the Will) signs it. It is insufficient if they see the Testator sign the Will via an app or video call, even if their view is clear and unobstructed.

Physical presence and a clear line of sight are the key issues here. Electronic presence is not enough. If a witness has seen the Testator sign the Will over Zoom or video conferencing, then this does not meet the strict requirements set out in the Wills Act and as such, the Will is invalid.

Witnessing of Wills over garden fences

The witnessing of Wills over garden fences as neighbours maintain social distancing has been shown to be acceptable, as long as the witnesses have a clear and unobstructed view of the Testator signing the Will.

It can be easy to get it wrong, and this may mean the Testator’s wishes are more difficult to follow, or it can mean the entire Will is invalid. It is important that the witnesses are truly independent. If family members (or spouses or civil partners of family members) are asked to witness a Will, it can mean they lose out on the benefit the Testator wanted them to have.

In recent months, many have expressed frustration at the “out-dated” requirements of the Wills Act, and demanded a change in the law to allow for electronic signing and witnessing of Wills. In certain areas of law e-signatures are permissible, but there have been no changes to the legislation that means this would be allowed for Wills.

The strict signing of Wills

The strict signing rules were brought in to help protect the vulnerable. It is important that anyone signing a Will has given it careful consideration and has made sure the Will is appropriate for their personal circumstances. Witnesses can also assist in protecting individuals against being pressured into the making of a Will, or favouring certain individuals over others.

It is important to make sure the rules are followed properly, in order to ensure that your wishes can take effect properly.

If you have signed a Will during the pandemic and are not sure whether it is valid, then contact our team of experts who can help and advise you.

Take a look at our guide to writing Wills here.

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