Social Distancing

Part of those safety measures involved lockdowns and social distancing which, for Probate practitioners, meant that solicitors couldn’t hold meetings with clients at their offices or arrange to visit clients. This caused an issue as 2 witnesses must be physically present to watch a person sign their Will. Clients had relied on solicitors providing this service which was no longer an option during lockdowns.

Remote Witnessing

To overcome this, the government introduced legislation allowing Wills to be witnessed remotely using technology to make video calls. This overcame some of the problems with signing and executing Wills. However, not everyone was able to use that technology and the new process was difficult for many. Cases now coming to light show that the lack of a solicitor being physically present for the Will-signing process led to errors, including with the terms of a person’s Will or with how the Will has been signed and executed. These can, sadly, cause gifts in Wills to fail and Wills to be invalid.

Here, we look into an example in which Mr Thomas prepared their Will during the pandemic and where, following their death, it became apparent that there were issues with the signing and execution of their Will…

Mr Thomas instructed a firm of solicitors to draft and prepare their Will. The solicitors drafted and prepared Mr Thomas’ Will however, due to Covid restrictions, they were unable to meet with Mr Thomas to oversee the signing and execution of his Will. As such, the solicitors finalised Mr Thomas’ Will and posted it to Mr Thomas for him to arrange to sign it without them being present to advise or explain the requirements. The solicitors failed to send Mr Thomas any guidance or written “how to” steps and did not arrange a telephone or video call with Mr Thomas to talk through signature on the day.

Mr Thomas subsequently arranged to sign his Will in the presence of two witnesses, who then arranged to sign the Will in the presence of Mr Thomas. One of the witnesses was a lifelong friend, Mrs Jones.

Mr Thomas was unmarried, had fallen out with his family decades ago and wanted to leave his entire estate to Mrs Jones as his sole beneficiary. He was very clear with his solicitors that he did not want his family to receive a penny.

However, Mr Thomas and Mrs Jones were unaware that, in accordance with Section 15 of the Wills Act 1837, as Mrs Jones acted as a witness to the signing of Mr Thomas’ Will she was barred from inheriting anything at all. Mr Thomas’ Will was still valid but, instead of Mrs Jones receiving his estate, the gift to Mrs Jones fell into intestacy and it was Mr Thomas’ family who received everything, against his very clear wishes.

Key Takeaways

When signing Wills remotely, it is important to remember the formalities which must be complied with for the Will to be validly signed, both under Section 9 of the Wills Act 1837 and Section 15 of the same.

If possible, arrange to meet with your solicitor so that they can oversee the signing and execution of your Will. However, if this is not possible, it is advisable that you send the signed and executed Will to your solicitor, so that they can check that it has been signed correctly and in accordance with the legal formalities.

If you are concerned about the validity of your Will, or you simply wish to review it to ensure that it provides for your wishes, contact our specialists today on 01482 324252 for a no obligations chat.

About the author: Ellen Boote