Recent developments regarding will writing during COVID-19

There has been a recent surge in the demand for wills following the start of the COVID-19 pandemic. The last comparable pandemic was the Spanish flu (also known as the 1918 flu pandemic) which lasted from January 1918 to December 1920 and infected 500 million people. The death toll is estimated to have been anywhere between 17 million and 50 million, possibly even reaching as high as 100 million.

Adapting to the pandemic

This new pandemic has changed the way we as solicitors are now taking instructions from our clients. In the past, we have always insisted on face to face meetings. However, because of the crisis, we have adapted our methods and are now willing to take instructions by Zoom and Skype, as well as over the telephone, in order to serve the needs of our clients.

How do lockdown restrictions impact on the signing of wills?

Section 9 of the Wills Act 1837 sets out specific rules which apply in relation to the making of a will. No will shall be valid unless it is in writing and signed by the testator (the person making the will) in the presence of two witnesses. The rules require that both witnesses need to be in the physical presence of the person making the will when it is signed.
In order to keep safe during the pandemic, the meeting could take place in the driveway, garden, or through the window of a house, each person keeping 2 metres apart. Everyone should have their own pens and wear gloves.

Vulnerable clients

A particularly vulnerable client may not be prepared to open their window for the signing of the will. The question, therefore, is if the client is prepared to leave the signed will outside their front door, for the witnesses, and watch through a closed window, would the will still be valid?

There is an old case called Casson v Dade where a lady went to a lawyer’s office to execute her will. She signed the will but then felt faint and was taken outside to sit in her carriage with her maid. The witnesses to the will stayed in the office and gave their signatures to the will. The maid gave evidence that at the moment the witnesses were signing, the carriage horses reared up, causing the carriage to move into a line of sight with the office window. The maid stated that had the person who made the will looked through the window, she could have seen the witnesses sign. The will, therefore, was found to be valid.

In this case, the window being open or closed was not the issue. Witnesses must either see the testator sign the will or hear the testator acknowledge that the signature on the will is theirs. This relates to the line of sight test in Casson v Dade, which required the testator to have been able to see the witnesses sign if she looked, even if she was not actually looking in that direction at the time.

There are ways of getting around the restrictions created by COVID-19 to ensure that a will is properly executed. We at Winston Solicitors can provide you with a clear set of instructions and correct guidance as to how a will can be properly executed. For specialist advice, please consult our Wills and Probate Team on 0113 320 5000 or email ejs@winstonsolicitors.co.uk