In the current climate of self-isolation and social distancing, the number of people looking to ensure their affairs are in order is, understandably, increasing on a daily basis. However, this presents a difficult scenario, whereby the legal formalities of signing the Will need to be balanced against the need to protect those at risk of infection.
While testamentary capacity and undue influence are key factors in proving the validity of a Will, we will only be focusing here on the points to note to ensure a Will’s valid execution.
Despite ongoing discussions regarding the possibility of relaxing the legal requirements, in the absence of such changes being announced, the provisions of s.9 Wills Act 1837 need to be followed. This stipulates that a Will is only validly executed where it is:
- in writing;
- signed by the Testator (the person making the Will (“T”)) or by another person in T’s presence and at T’s direction;
- apparent that T intended his or her signature to give effect to the Will; and
- signed by T in the presence of two or more independent witnesses, who are both present at the same time, and who must attest and sign the Will in the presence of T (but not necessarily in the presence of any other witness).
Signing the Will
There is no statutory rule as to where T must sign the Will, but rather there is a general requirement for T to intend their signature to give effect to the Will. However, to avoid uncertainty and the risk of challenge, it is advisable that T signs at the end of the Will.
- T should sign the Will using his or her own pen, rather than any provided by his or her solicitor or either witness;
- T should wear gloves if possible; and
- T should sign at a distance of at least 2 metres (6 feet) from the witnesses, and this distance should not be reduced for any reason during the signing process.
Presence of witnesses
T must sign the Will in the presence of at least two witnesses at the same time.
Safety Tip: Case law illustrates that there must be a “visual” presence, namely that all parties always remain within one another’s sight, allowing the witnesses to actually see T sign the Will (1).
The first point to note is that the witnesses do not need to read over the Will with you, they merely have to see you sign where required. The time it should therefore take to execute your Will should be kept to a minimum. If you do wish to discuss your Will with your witnesses before you execute it, we recommend that this is done on the telephone before meeting with them.
Unfortunately, the Wills Act 1837 does not allow an individual to witness a will via electronic means, as a witness must be physically present (2). There is also currently no case law of witnessing having been conducted via Skype or video conferencing (3).
However, this does not mean that the witnesses need to compromise their safety or disregard the 2 metres (6 feet) safety guidance. Provided that the witnesses can see T as he or she signs the Will, that will suffice, be that from across the same room, through a window (4), or some other similar method. Again, remember, keep the time to execute your Will to a minimum.
The witnesses must then sign the Will after T has done so. Although the witnesses must sign in T’s presence, there is no legal requirement that the witnesses sign in the presence of one another. However, it is common practice for them to do so and we would recommend it.
The witnesses should sign below T’s signature, rather than above it, to avoid any uncertainty as to whether they signed first.
Safety Tips: Again, the witnesses’ signing of the Will in T’s presence does not need to endanger their safety. Provided that T can see the witnesses as they sign, a safe distance of 2 metres (6 feet) can be easily maintained.
Furthermore, the witnesses should each sign using their own pen, rather than one used previously by T or one another, and wear gloves, to prevent the spread of the virus which can be transmitted via surfaces.
Once T and both witnesses have signed the Will, the Will should be dated in the appropriate place.
Following school closures, and the Government’s advice for employees to work from home to reduce the spread of the Coronavirus, it has never appeared more difficult to ensure the independence of those who witness your Will.
However, do not be tempted to rely on close relatives of yourself (as T) or relatives of any named beneficiary in the Will. Not only can it raise a suspicion of undue influence, section 15 Wills Act 1837 states that if a witness is either a beneficiary named in the Will, or is a spouse or a civil partner of a beneficiary named in the Will, that gift shall be void. Instead, use neighbours (as long as they are not also a beneficiary) as witnesses: they strike the perfect balance between familiarity and independence.
Safety Tip: While work colleagues are considered suitable witnesses, your workplace will likely be closed in line with Government guidance. Do not travel on public transport to meet your colleagues for this purpose. Instead, neighbours would be a safer choice, given they are closer and can avoid others more easily during the brief period while outside their own home.
Ultimately, when signing your Will, keep the following in mind:
Sign your Will (preferably at the bottom) before your witnesses do.
Make sure that both witnesses are present at the same time when you sign your Will, and that they can actually see you as you sign.
Witnesses then must sign the Will in T’s presence (though not necessarily in each other’s presence.
Ensure that your witnesses are independent, and certainly not beneficiaries in your Will (or related to a beneficiary in your Will).
- Sign using your own pen;
- wear gloves; and
- maintain a distance of 2 metres (6 feet) at all times.
Witnesses can stand across the room, or even watch T through a window or while sitting in a car, provided they can see T as (s)he signs. Remember, witnesses only need to see you sign, so it should be a quick process. The witnesses do not need to read over the Will with you.
- Witnesses should sign using their own pen;
- witnesses should wear gloves; and
- witnesses should maintain a 2 metre (6 feet) distance from T (and one another) at all times.
Use neighbours as witnesses rather than work colleagues, as they are independent and easily accessible.
If you have any queries about any issues raised in this blog, please do not hesitate to contact our Private Client Team.
This blog was written by David Brown.
(1) See Sherrington v Sherrington  ALL ER (D) 203 (JUL): the witnesses followed an instruction to sign a sheet of paper. This was held to be insufficient, as they did not actually “see” T sign or notice T’s signature on the Will.
(2) See Law Commission Consultation Paper 231: “Making a Will” (13 July 2017), which emphasises that witnesses must be physically present at the signing of the Will (para 6.32): https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2017/07/Making-a-will-consultation.pdf
(3) But see the Government’s recent considerations over witnesses by video link: Parliament.uk: Government response to the Law Commission report Electronic Execution of deeds: Written statement).
(4) See Casson v Dade  6 WLUK 25: it was held sufficient that the Witnesses could see T sign the Will when separated from one another by a glass window. The same principle has also been applied for Lasting Powers of Attorney, where the Donor and witnesses were separated by a glass window (see Re Clarke (19 September 2011))
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