How do you make a valid will with witnesses in the coronavirus lockdown?

I want to make a will without putting myself or witnesses at risk and breaking coronavirus restrictions. How do I do it?

Tanya Jefferies, of This is Money, replies: Lawyers tell us demand for making and updating wills is surging, which is understandable in the midst of a grave health crisis.

But a person creating a will and two witnesses have to be in the same place and all sign the document to ensure it is valid.

This is creating practical – but not insurmountable – challenges.

People with existing health conditions and the elderly are the most likely to want to sort out their will right now, but they are also the most threatened by close contact with others.

The Law Society is pressing the Government to make common sense, perhaps just temporary, changes such as allowing Skype or Facetime recordings of wills being signed.

In our recent story about this, a law firm suggested maintaining social distance while sitting at adjacent park benches, or standing in gardens, at doorsteps, or on opposite sides of a room. 

Below, two lawyers give further tips on how to get a will signed and witnessed while participants all remain safe, and who you should – and should not – ask to be a witness.

Elspeth Neilson, private client partner at Osbornes Law, says: 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 the person making it and two independent witnesses who are not beneficiaries or the spouses of beneficiaries, and all three must be physically present in the same place when this happens.

Given most of us are restricted to contact with 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 existing rules.

Failure to do so could invalidate your will and prevent your assets passing to your chosen beneficiaries.

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. 

How do you ensure your will is valid?

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.

A practical solution would be to ask neighbours to be witnesses whilst taking precautions to prevent infection.

One 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 as, or let it turn into, a gathering.

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 people wishing to benefit under the will.

This is more of a concern when so many of us are isolated.

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 gives instructions and executes their will 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.

James Antoniou, head of wills at Co-op Legal Services, says: Lawyers are reporting an extreme surge in people putting wills in place.

They are having to think creatively about how to put wills in place for clients that stand up legally, particularly when it comes to witnessing and signing them.

When executing a will, the testator – the person making it – needs to sign in the presence of two witnesses in order for it to be valid, and they both need to sign it too.

In accordance with the law, this cannot be done electronically and the signing requires a ‘wet signature’.

People putting a will in place should therefore consider carefully who can act as their witnesses.

A clear understanding of the rules are critical as, for those staying at home and self-isolating, it may still be possible for members of their household to take on this role.

Alternatively, if this is not possible, then a person may want to ask two neighbours or friends, who would be both eligible to act and prepared to witness the signing of the will whilst maintaining the required two-metre distance.

The purpose of having two witnesses is to prove, if required, the circumstances around the actual execution of it.

This creates the need to have adequate witnesses who, if required, could give credible evidence. For example, witnesses who are adult, competent and independent.

The following people should not be your witnesses:

– Any of your beneficiaries named in your will – the people you intend to inherit from your estate

– The husband/wife or civil partner of a beneficiary in your will

– Anyone under the age of 18

– Anyone who is blind or partially sighted

– Anyone who does not have sufficient mental capacity to understand what they are witnessing.

If any of the above are witnesses to your will, it could cause problems after you pass away.

For instance, section 15 of the Wills Act 1837 states that if a witness of the will or their spouse is named as a beneficiary, then the witnessing remains valid but the actual gift to the witness (or their spouse) fails.

The independence of the witnesses is key because it could be claimed that you were placed under pressure to sign the will.

A witness must also be able to watch you sign the will and see that it is your signature. This is in case anyone challenges the will after you die.

When this happens, the witnesses may be called upon to give evidence and confirm that you did indeed sign your will, and that you did so willingly.

It’s for this practical reason that people who are blind or partially sighted should not be witnesses.

As family members and beneficiaries aren’t considered as independent, you might feel like there aren’t many other people you can ask to witness your will.

But anyone else you know who isn’t a beneficiary can be a witness, such as a friend, neighbour, colleague or even two people from your doctor’s surgery.