How to safely witness your Will

09 April 2020

How can you safely have your Will witnessed?

The Law Society website has suggested that High Street solicitors are experiencing a large increase in the number of Wills being requested to an extent not seen since the Second world war.
This is hardly surprising given the current situation but how can wills be safely witnessed in the light of the requirements of social distancing? Those solicitors ‘acting in connection with the execution of Wills’  have now been designated as ‘key workers’ which is fair enough, but witnessing wills requires physical face to face activity and brings with it the obvious virus transmission risks.

Current witnessing requirements

The witnessing formality of wills is stated in a very old Act of Parliament (the Wills Act 1837). It confirms that the person who made the Will (the testator) should sign or acknowledge his/her signature in the presence of two or more witnesses at the same time.

An exception to this rule is permitted in respect of personnel who are on active military action. Such individuals are permitted to make ‘privileged Wills’ which have relaxed witnessing requirements. However, this permission is not extended to civilians, and further legislation would be needed to allow this.

The Law Society is currently working on this difficulty and are in discussions with the Ministry of Justice to try and find a way forward. 

Why can’t witnesses sign electronically?

The biggest risk of not executing a Will properly is that it will not be valid, fail probate, and the deceased’s estate will need to follow the intestacy rules (our previous blog explains these). This defeats the whole purpose of making the Will in the first place. 

Other deeds can now be signed and witnessed electronically under English law, but Wills were not included in this relaxation based upon the possible vulnerability of those making them. The trouble is that if there is confusion as to how a Will was intended, the only person who really knew this has recently passed away.

Tips how to have your will witnessed at home

1. Remember that beneficiaries lose their entitlement under a Will if they are witnesses to it.
2. The witnesses can be known to you or strangers – it doesn’t matter so long as they are adults and independent.
3. Why not use your neighbours at the garden fence, gate, or door!
a. Literally, ask your neighbours to witness your will employing the 2 metre rule,
b. Show them the Will from a distance,
c. Sign it in front of them (or point to your existing signature and confirm its yours), 
d. Place the Will on the ground/gate/post, and walk back an appropriate distance,
e. Invite your witnesses to sign at the appropriate place (mark the place with pencilled crosses),
f. When witnessed – they walk back keeping that vital distance and you collect the Will.
g. Keep it in a safe place.

If you are a key worker, take your Will to work, and have it witnessed there.

When you have made a Will, remember to keep it safe at all times. We live in strange and troubling times. Please observe and practice those vital social distancing and isolation directives. They are important to keep us all safe and well and importantly, protect our societies vital key workers. 

John Davies
6th April 2020

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You might also enjoy reading our previous blog "Have you made a Will yet?"