In view of the Covid19 pandemic and social distancing measures you may wish to be inside with the two witnesses being on the other side of a window. Hence they can witness the signature of the document, but not be in close contact with you. The Will, once signed by you, could be passed through a window or letter box for the witnesses to sign (You must watch them sign) They may wish of course, to use their own pens.
It is estimated that about 60% of the adult population do not have a Will and not surprisingly The Telegraph reports that Will and Lasting Power of Attorney instructions are up by 30%.
Difficult times are upon us but we are finding new ways of working so that matters can be progressed whilst observing social distancing . Many people are not aware that for a will to be valid it must signed in accordance with the strict requirements of Section 9 of the Wills Act 1837 , 183 years ago they couldn’t have envisaged the situation that we now find ourselves in ! Apart from the main requirement that a person must have sufficient mental capacity to make a Will it also needs to be signed in the presence of the person making the will and 2 witnesses ( and there are some restrictions on who can be a witness , the most important being that the witness cannot be a beneficiary or the spouse of a beneficiary otherwise the gift to them will fail ) , and all have to be present at the same time .
In normal times clients attend at our office and we would provide the witnesses. However we now have to be more inventive . We can discuss instructions by telephone or by Facetime or Zoom and we then confirm instructions and send a draft , usually by email , but by post if that is preferred . Once the draft has been approved we send out the original Will in the post for signature .It’s lucky that so far we have had dry weather as we are suggesting that the 2 witnesses could stand in the garden or on the drive ( with their own pens of course ! ) the person making the will signs the will in sight of the witnesses and then stands back at least 2 metres, but still in the line of sight , and the witnesses then step forward and witness the signature . They also have to sign and then print their names and address . The will is then dated . This can also work through a window with the person making the will on one side and the witnesses on the other . We have a demonstration video on our website that is proving popular . It is also possible for a person to sign on behalf of the person making the will , in normal times this is usually done if a person is physically unable to sign or if they cannot see and in those cases we add a special clause to the will . In due course when normality returns we will be happy to reprint the will and have it signed in our office .
For Lasting Powers of Attorney ( which can be Health & Welfare or Financial ) only one witness is required for each signature but most importantly the document has to be signed in a strict date order ie the person making the Lasting Power of Attorney signs first in the presence of the witness and then the Certificate Provider ( who confirms the persons understanding of the document and that the person is not being forced into making the Power of Attorney ) signs and dates and then the attorneys can sign . If not done correctly the Office of the public Guardian will reject the document when it is submitted to them for registration . We will explain the signature requirements and then check the document when it is sent back to us for registration .
The pandemic and lockdown has brought new challenges to the Wills and Probate Team . As lockdown started many people realised that they didn’t have a will in place that reflected their wishes and that their estate may not pass to those they really wanted to benefit. They realised that during their lifetime without Lasting Powers of Attorney (whether for Financial Affairs or Health & Welfare), their family may struggle to deal with matters on their behalf.
At AST Hampsons we are proud of the fact that we have been able to continue to offer face to face meetings with a dedicated qualified solicitor able to discuss your requirements in depth. During lockdown we have had to look at new ways of working so that we can still provide the same level of service without putting clients and staff at risk . We are able to arrange meetings by Zoom or Facetime and telephone and we are now returning to meeting clients in our office when necessary as we have safety measures in place .
Wills in particular need to be signed in a certain way to be valid and this involves the person making the will and two witnesses to be in each other’s presence at the same time . Covid19 has meant that these rules need to be updated and the Ministry of Justice intends to introduce legislation in September that will enable wills to be signed using video technology. The legislation will be backdated to wills made between 31st January 2020 and 31st January 2022 however this procedure is likely to be more complex as the will still has to be physically signed by all parties and will need to be sent to the witnesses . Once the legislation is in place we will be providing more details, in the meantime we are able to see clients and provide the witnesses or to send the wills by post with full instructions and we additionally confirm those instructions by phone .
We look forward to receiving any enquiries for further information.
Please call us on 01706 653322 to speak to the Wills & Probate Department if you would like to discuss your options or email any of our team
Louise Salisbury - [email protected]
Joanne Ford - [email protected]