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The rules for signing a Will are set out in the Wills Act of 1837 (Section 9), at a time when understandably the possibilities of electronic signatures and zoom conferences were not being widely considered.
Of course, there were incidences of disease and sicknesses, epidemics or even pandemics, but the implications experienced today of Covid-19 were not something that the law makers in 1837 could take into account.
Throughout the lockdown period, we have been advising clients on how they can safely sign their Wills whilst maintaining necessary social distancing and safety for themselves and their required witnesses (you need two). To do this, we have gathered around garden tables outside and witnessed Wills, and also have stood outside care home windows whilst residents have signed Wills inside and we have signed as witnesses outside.
Overall, we have worked hard to find ways to follow the legal requirements notwithstanding the severe restrictions placed on movement and people during the crisis period. Formal requirements for executing certain other kinds documents have been relaxed or amended, but so far this has not been the case with Wills and there have been occasions, for example with someone maintaining a shielding regime, when it has simply been impossible to sign a Will and follow the required formalities.
In some circumstances, people have resorted to signing their Will and having it witnessed by Zoom or other video conferencing facilities. In recognising the circumstances that people are facing, the Ministry of Justice has now announced that it intends to bring in legislation to amend the 1837 law to permit such Wills to be considered valid. It is understood this will happen in September, and the new amended rule will apply retrospectively to cover any Wills that have been signed “virtually”. It is not clear whether this change will be permanent or temporary, however, there has already been a long consultation on the law relating to Wills and we should expect some significant changes over the next few years in any event, so this measure may turn out to be just the first of several.
We would always advise people to comply fully and clearly with the law as it currently stands, and we have yet to see the detailed proposal for change and cannot say exactly how any changes may be interpreted. It is however, a welcome move towards protecting each person’s right to make the Will that they want and preventing this from being frustrated by dated formalities which have become impractical and sometimes impossible in the current circumstances.