How do I make a will with social distancing rules in place?

The coronavirus crisis means many are considering updating their will or making one for the first time.

Whilst this is a sensible step to take, strict social distancing measures mean drawing up a valid will is not straightforward. A will must be signed by two independent witnesses who are not your beneficiaries or the spouses beneficiaries. Given most of us are restricted to contact those in our household only, this creates some difficulty, assuming the people in your household are the intended beneficiaries.

Whilst the government is looking urgently at the witnessing requirements to see if an alternative can be introduced, for now, anyone making a will needs to follow the current rules.  Failure to do so could invalidate your will and prevent your assets passing to your chosen beneficiaries.

Elspeth Neilson, private client partner at London law firm, Osbornes Law says, “It’s important to recognise that small mistakes in your will can cause significant problems for loved ones in the event of  your death and could result in extra costs or, you dying intestate.

“Even in these unprecedented times you should ensure that your will appoints executors, contains a clear and unambiguous disposal of your estate, and is executed correctly.

“Your will must be in writing and be signed and dated by you or, in your presence, by another person who has your permission to do so.  It must also be signed by two or more witnesses who are present at the same time.  Witnesses must be over 18, and they or their spouses must not receive anything under the will. Witnesses who are also beneficiaries will lose their entitlement under the will.”

Elspeth suggests a practical solution would be to ask neighbours to be witnesses whilst taking precautions to prevent infection, she says, “A sensible option would be to sign your will outside in the presence of two neighbours who are not displaying coronavirus symptoms. They should remain at least two metres away from you, in a place where they are still able to see you sign the will.

“The witnesses also need to sign the will so you would then place it in a convenient spot visible to all parties and move two metres away.  Both witnesses could separately approach and sign and as long as precautions are taken such as using your own pens, making no physical contact, wearing gloves, conducting the process quickly, and adhering to strict handwashing measures afterwards.  You should not treat the process, or let it turn into, a gathering, which could result in a fine.”

There are other issues that can invalidate a will such as doubts about the mental capacity of the individual writing the will or undue influence exerted by relatives.  This is more of a concern when so many of us are isolated.

Elspeth says, “For our clients, we are seeking to address this by using video calls on the day wills are executed to check capacity and to ensure anyone who may be vulnerable to undue influence give instructions and execute their wills without the involvement of anyone else.  We are talking with witnesses and inviting clients to come and see us once things are back to normal to review and if necessary, re-sign their wills.”

These are highly unusual circumstances so wills written during this time may well need to be revisited in the future.

Contact

Elspeth Neilson Partner
Wills, Probate and Disputed Estates

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