How do I get a will signed with two witnesses during coronavirus crisis?

The coronavirus outbreak has sparked a dramatic rise in people making wills and led to calls for the law on witnesses to be relaxed.

At present, a person creating a will and two witnesses have to be in the same place and all sign the document to ensure it is valid.

Lawyers warn the virus lockdown and social distancing are making this a huge practical challenge, especially as witnesses must not benefit from the will or be executors, which usually rules out most if not all people living in the same household.

With fear about coronavirus gripping the country, demand for wills is soaring. Law firms tell This is Money they are seeing jumps in requests ranging between 30 and 70 per cent compared with normal business.

The Law Society is in talks with the Government to find ‘common sense’ ways to loosen rules, which date back to the Wills Act of 1837, requiring two witnesses to be physically present at the signing of a will.

But Ian Bond, chair of the Law Society’s wills and equity committee, says right now people should simply go ahead and make the best record of their wishes in a will they possibly can, and then go back and sort it out after the crisis.

‘Make a will. Go on the internet. Use a solicitor. It’s better to have a will than no will,’ says Bond.

The Law Society is currently talking to the Ministry of Justice about the following options on witnesses:

– Allowing just one witness to a will instead of two;

– Giving judges some flexibility to look at Skype or Facetime recordings of wills being signed;

– Adopting the practice of some other European countries, where if you make and sign a handwritten will it is considered valid.

‘It’s about showing some common sense,’ says Bond, who is also director and head of trusts and estates at Talbots Law.

But he adds that the Ministry of Justice is dealing with many pressing issues right now – including how to conduct trials, and family matters such as custody of children – and needs to get changes on wills right because it might be hard to reverse them later.

‘They will not simply overturn 200 years of legal precedent. Because after a temporary change, emergency legislation, it will be difficult to argue we should go back to the Victorian era.’

Bond says Talbot Law normally does around 100 wills a month, but has done 170 to date in March.

Simon Goldring, partner at law firm McDermott Will & Emery, says: ‘We have seen a surge in demand for advice on wills in recent weeks, as clients seek to put their affairs in order in case the worst should happen.

‘Existing clients want to accelerate the execution of their wills, old clients want to update their wills, while other clients are recommending that family members, especially their parents, prepare wills.’

Goldring says in 2017 the Law Commission consulted on ways to modernise the law relating to wills, including whether to allow electronic wills, but gradual movement toward reform has been overtaken by events.

‘We find ourselves in an unprecedented situation where the formal requirements of making a will may, paradoxically, prevent many clients from being able to put in place a valid will.’

To overcome this, his firm McDermott has prepared detailed will signing instructions that take account of Public Health England guidelines on maintaining social distancing and hand hygiene – but this depends on finding willing witnesses.

Where there is no practical alternative, McDermott suggests using technical solutions such as a client and two witness, who are preferably both solicitors, using electronic signatures during a video meeting.

Golding says: ‘Full notes should be kept by the lawyers of the circumstances as well as reasons for using electronic signatures and video witnessing in case the will is submitted to probate and to maximise the chances it will be treated as valid.’

Gareth Horner, managing partner of law firm Parker Bullen, says it has seen a 50 per cent increase in demand for wills, with many people asking for this to be done urgently.

“As with The Law Society, we urgently call for legislation surrounding the witnessing of wills to change so they don’t have to be signed or witnessed in person.

‘Demand for wills is surging locally, but the Government must change rules to allow for electronic signatures or the lawyers to sign on a person’s behalf and witnessing via video conferencing.’

Horner says video conferencing ensures the vulnerable do not need to leave their homes, but this is being undermined by a will needing to be signed and witnessed by two individuals in person, which puts people at additional risk.

Another law firm, Kingsley Napley, reports that will enquiries are up by a third in the coronavirus crisis.

It is sending out wills to clients so they can make their own arrangements with suitable witnesses while maintaining a safe distance as far as possible.

The firm says the difficulty is assessing what a safe distance is, particularly if you are vulnerable and are self-isolating, while satisfying the requirements of executing a valid will.

Kingsley Napley makes the following suggestions in a recent blog post:

– Sitting at a park bench with witnesses at adjacent benches, and rotating so each approaches the park bench individually to witness the will;

– Getting neighbours to witness and sign the will from the safety of their own gardens;

– Standing on your doorstep whilst your witnesses stand on the pavement, but depending on how isolated you are required to be, there is a risk in transporting the will

– Keeping on opposite sides of the same room, but the safety of doing this depends on its size and the vulnerability of the individuals involved.