The case of Peter Coady v Gerard Coady has been reported recently. It is an interesting case discussing the validity of Wills generally but, specifically, Wills that were created during the Covid pandemic lockdowns.
General principle
For a Will to be valid, it must be signed in line with statutory requirements set out in Section 9 of the Wills Act 1837. Section 9 of the Wills Act states that a valid Will must be in writing and signed by the ‘testator’ (the person making the Will). That signature must be made or acknowledged in the presence of two witnesses, who must also sign in the presence of the testator.
Facts of the case
In 2020, Ms Kathleen Coady created a Will appointing her son, Gerard as the sole executor and the sole residuary beneficiary. This replaced an earlier Will from March 2017, under which Peter Coady (the claimant) was the executor and residuary beneficiary.
Following Kathleen Coady’s death in November 2022, Peter argued that the Will was not properly signed and witnessed as the Will was drafted during the first Covid-19 lockdown, prepared by Solicitors and signed at home due to social distancing restrictions.
The key dispute concerned what happened during the execution of the 2020 Will. In giving evidence, one of the witnesses said that both he and his mother were asked by Gerard to witness the Will as an emergency measure. They entered the back garden, where a table had been set up about 10-12 feet from the back door. Kathleen, the testator, was seated inside at a dining table, 6-8 feet from the door. The witness described her as very ill, half asleep, frail and silent making no acknowledgment of their presence. The witnesses did not see her sign the will and she could not see them witness her signature. The entire process lasted 2-3 minutes and there was no conversation in respect of the papers, and some were folded and partially covered.
However, Gerard’s account was different. Gerard claimed that the solicitor’s instructions were followed precisely, the Will was read aloud to Kathleen Coady, and the witnesses could see the Kathleen’s signature and she greeted and thanked both witnesses. The court found this evidence to be suspicious and unreliable.
The court acknowledged, when coming to its decision, the temporary extension to legislation which allowed for Wills to be executed by video conference during the pandemic (the Electronic Communications Amendment Coronavirus Order 2020). However the court stressed that the simultaneous presence and acknowledgement requirements did still apply. The court ruled that the Will was invalid for non-compliance with requirement of section 9 of the Wills Act 1837.
Key considerations
The case is a reminder of the potential issues with Wills that were made and executed a during covid lockdowns, when social distancing requirements meant that the usual protocols could not be followed. The best course of action following the publication of this case would be to review any Wills made during the covid pandemic to make sure that they were validly executed. It is acknowledged that the circumstances during lockdown were extenuating, however, the court stressed that the section 9 legal formalities must still be adhered to. This is particularly relevant if your Will was executed via video conference under the temporary legislation, as there is risk of these documents being found to be invalid. In any event, it has now been over 5 years since the first covid lockdown and, as such, a review of any Wills made during that period is now timely.
