How do I sign a will during the Covid 19 outbreak?

  1. Physical signing and witnessing of the document is still required,
  2. Witnessing can take place at distance or through windows,
  3. DIY wills are potentially more risky in such times,
  4. Factors such as sanitisation and materials used, during signing, may mitigate infection risk.

Current English law on the creation of a legally valid will rests for the most part on the Wills Act 1837. Under this act, testators (those making a will) must sign the document ‘in the presence’ of at least two witnesses. The Law Commission examined the notion of ‘presence’ for such purposes in 2017, concluding that individuals must be both in the same room and have line of sight of documents.

The need for ‘physical presence’, is believed to exclude the use of video conferencing or other telegraphic ‘lines of site’, and has been held for some time (In the goods of Chalcraft [1948]).

In the context of virus containment measures, aimed at limiting spread of Covid 19, the Ministry Of Justice have recently been considering emergency legislation aimed at making the signing of wills easier.

Proposals have included the use of ‘video’ witnessing, the use of a ‘privileged will model’ (based on short form documents given to soldiers directly before combat, requiring of no witness) and the need for only one witness (based on Scottish law).

Despite elevated demand, at this anxiety provoking time, The Ministry for Justice has rejected such proposals. Commenting: “This is a delicate area of law and we absolutely must continue to protect the elderly and vulnerable against potential fraud”.

One can see their point, at a time of heightened dependence amongst the vulnerable, the risk of factors harmful to the integrity of a will, such as undue influence, might reasonably be assumed to be elevated.

This highlights the importance of the instruction taking process. In a one to one meeting, even by phone or video-link, certain evidence can be gathered by a drafter to support your will in the event of future challenge. People considering DIY wills at this time, should be more careful than ever, as the absence of a direct interaction risks compounding those already present.

There are certain elements which can be combined to potentially mitigate the risk of viral transmission during signing. Firstly, and whilst video witnessing is excluded, witnessing through a window has been deemed to constitute physical presence in case law (Casson V Dade, 1781). Secondly, protective clothing and sanitisation can reduce the risk of viral transmission. Finally, evidence is crystallising on Covid 19’s ability to survive for periods of time on different materials (see https://www.health.harvard.edu/diseases-and-conditions/covid-19-basics).

Whilst no approach can be deemed fool proof, not least due to the newness of the Corona Virus and associated ignorance, Confidence Wills have consulted with both vulnerable clients and clinicians to develop an execution protocol, which is practical and aimed at mitigating risk to signers, based on the evidence available.

If you would like any further information on this key area please contact Confidence Wills on  0121 202 4714 or info@confidencewills.co.uk.