Unsurprisingly in these uncertain times people are taking stock and either deciding to make a Will or updating their existing Will.
The challenge for both solicitors and their clients has been in the execution of the Will. In particular the signing and witnessing of the document.
Due to the restrictions placed upon us we are unable to invite our clients to visit our offices to sign their Wills. We are required to send the Wills to our clients with detailed instructions regarding the signing and witnessing of the documents.
This in itself presents challenges, particularly where clients have to organise their own witnesses in such a way that the client and their witnesses must all be in the proximity of each other so that the legal requirements may be satisfied whilst at the same time observing rules of social distancing.
The legal requirements date back to the Wills Act 1837 (the year Queen Victoria ascended to the throne) and require the Testator/Testatrix to sign their will in the presence of two independent witnesses.
It may be possible for a person to sign their Will whilst the witnesses remain at a distance, for example, watching the signing of the Will from outside the persons home, through a kitchen or lounge window. This avoids having to invite people into your home who are not family members.
Some aspiring firms have suggested their clients drive to their office, stop the car outside the office door, sign their Will and pass it to the Solicitor who along with a colleague will witness the Will and take delivery of the document whilst the client remains in their vehicle.
The government has been asked to consider relaxing the law to allow for virtual signings to take place but so far, the government has been reluctant to act.
Whilst considering these problems it is interesting to note that the courts have for many years been occupied with cases concerning the attestation of Wills. By way of example in 1781 in the case of Casson v Dade the Testatrix Miss Honora Jenkins went to her solicitor’s office to sign her Will. After signing she felt feint and went to sit in her carriage with her maid. The witnesses remained inside the office where they also signed. The maid gave evidence to the court that at the moment the witnesses signed the carriage horses reared up causing the carriage to move forward in line of sight with the office window. The maid stated that had Miss Jenkins; looked through the window she could have seen the witnesses sign. The Will was found to be valid.
Whilst the limitations of movement remain in force lawyers and their clients must strive to satisfy the legal requirements that exist relating to the signing and witnessing of Wills under the most challenging circumstances.
If you do require any assistance or even a non-obligatory chat, please do contact a member of our Team on:
T: 0116 2999 1999 Option 0