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Wills, Trusts and Estates – Executing a will in the time of coronavirus

Our clients are facing growing issues when it comes to signing their Wills in the presence of two witnesses, especially where our clients are…

"Practitioners are in a difficult position as it may not be possible to comply with the government's guidance to reduce social contact while also arranging for wills to be validly signed"

Where delaying making a will is not an option and social distancing is enforced throughout the UK, our clients are facing growing issues when it comes to signing their wills in the presence of two witnesses, especially where our clients are high-risk and self-isolating.

Option 1 – Witnessing through the window

Can witnessing through a window be said to be formally in the testator’s presence?

Old case law has suggested it may be sufficient that the testator signs the will in sight of the witnesses and not all are present in the same room.

Suggestions have been made that the virus can survive for up to 12 hours on paper and can therefore be passed by handling and passing the will from testator to witnesses. As practitioners, we must remain mindful of this if we are to use this option but, witnessing through a window, remains a viable way of ensuring wills are witnessed for the time being.

Option 2 – Signing on behalf of our client

It is possible for our clients to direct us to sign their will on their behalf. This would mean the client would not need to handle the will at all, or come into contact with anybody else. However, three people would be required to execute the will in this way, causing additional problems when following social distancing orders.

We are able to accommodate this at Weightmans in cases of urgent need.

There is, not yet, any confirmation that e-signatures or video witnessing will be acceptable when it comes to signing wills. However, as the pandemic worsens and staying at home becomes mandatory, we may see some welcome changes.

The latest government order to stay at home also causes problems in assessing the capacity of our clients. Our standard position is to see a client face to face to assess capacity. Technology, such as Skype and FaceTime, can be successfully used where there is no doubt as to capacity. However, following the golden rule, where there is any doubt as to capacity a medical opinion must be sought. Amidst the coronavirus pandemic, obtaining a medical opinion is likely to be extremely difficult, given the increasing pressures the NHS are now facing.

If the content of this update raises any issues for you, or you would like to discuss, please liaise with Sarah Louise Walker, Principal Associate at sarah.walker@weightmans.com or Emily Hitch, Solicitor at emily.hitch@weightmans.com.

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