COVID-19 Update: Still no change to the law in relation to signing your Will in lockdown

There has, over the last few weeks, been much discussion surrounding the problem of  executing Wills in lockdown.  The current law, which is over 180 years old, says that in order for it to be valid, a Will must be signed “in the presence of two or more witnesses present at the same time”.  Clearly, society and technology have moved on enormously since the Wills Act of 1837 came in to force and, even before the pandemic, the law in this area was in need of modernisation.

At a time when the country is in lockdown and public gatherings of more than two people are banned, how is it possible to satisfy the requirement for two independent witnesses?  The most vulnerable members of our society must be shielded and anyone who is over the age of 70, has an underlying medical condition or is pregnant has been told it is even more important that they follow the Government’s advice to stay at home.

There are concerns, therefore, that the health of testators and their witnesses is being put at risk by the requirement for physical “presence”.

There is also the risk of an individual’s wishes not being implemented on their death, or of unnecessary litigation if a Will is not validly executed.  So it is important to get it right.

Various suggestions have been put forward as to how the law might be relaxed during lockdown, notably extending the scope of “privileged wills” (which currently allow active military personnel to make wills with no witnesses) to the wider population, or allowing the witnessing of Wills by video link.

The Law Society has been in urgent discussions with the Ministry of Justice to relax the rules on the witnessing of Wills since the beginning of the crisis but, as yet, there has been no change.  No emergency legislation on the relaxation of the witnessing requirement was included in the Coronavirus Act 2020.

This week, Under Secretary of State, Alex Chalk MP, has said that the circumstances allowing people on active military service to make privileged wills do not equate to the current civil circumstances.  He stressed the importance of protecting the elderly and vulnerable against undue influence and fraud, and the safeguard that having two independent witnesses provides against those dangers.

He has, however, confirmed that the Government is reviewing the case for reform of the law given the current circumstances.  Longer term measures will also be considered including the witnessing of documents by video conference generally.

In the meantime, Anthony Gold have put together a short guide containing additional points which should be considered while executing your Will in lockdown. Please click here to view the guide.