Will writing during lockdown – what you should know

During times of fear, worry and existential crises, it’s not surprising to see a rise in people enquiring about wills. However, the COVID-19 pandemic isn’t just something that affects a small group of people; it affects everyone.

Because of this, the number of people enquiring about wills has increased quite dramatically over the past year. It’s not just people in vulnerable categories or who have taken an ill turn that have been enquiring; frontline workers who are not in vulnerable categories have found themselves considering their mortality due to being in proximity to so many different people. Healthcare professionals have been particularly keen to sort out wills as a precaution due to being in proximity to high viral loads as a result of tending to COVID-19 sufferers.

importance of will during lockdown One poll found that there was a whopping 70% increase in demand for will execution in March 2020 compared to the fourth quarter of 2019. As well as dealing with the increased interest, providers of will-writing services have faced unforeseen challenges – especially in regards to legality.

In this article, we’re going to talk you through what you need to know about wills during the pandemic and how the current restrictions are likely to affect the execution of your will.

The legality of wills during lockdown

To understand why will-writing is such a problem during a time of social distancing, we need to look at the law surrounding wills. In order to be legal, wills in England and Wales must meet the criteria first set out under the Wills Act 1837, section 9. This sets out that a will must be submitted in writing (handwritten or print/typed) and the testatrix/testator (the person who has made a will/legacy), or a directed legal representative of the testatrix/testator’s choosing, must sign it.

However, things get more complicated when you consider the legal need for there to be at least two independent witnesses present to witness this signature. The will must then either be attested and signed by the witnesses or, at the very least, acknowledged while the testatrix/testator is in the same room or within sight of the will being signed. This means that the signatory and the witnesses can, technically, be in a separate rooms or can observe through a window.

As you can see, this poses quite the challenge during social distancing restrictions and even more so if the person is in hospital where there are heavy restrictions on the visitors who can be present. Even if it isn’t in the hospital, arrangements must be made to ensure that there are at least 2 meters distance between every person present.

Other further considerations to keep in mind is that these witnesses must be independent. By that we mean that they will not benefit from the will. With restrictions on the mixing of households, this creates a difficult situation. The 2 metre rule also poses problems if one of the intended witnesses is partially sighted as they may not be able to legally claim that they witnessed the signature.

Adjustments to the law under lockdown

In September 2020, the UK Government made a historic move to put in place legislation in England and Wales that allows for a will to be witnessed via video link. This was the first time in almost 200 years that the law surrounding wills had been adjusted. However, the preference is still for a witness to be in-person and such a set-up should only be used in the event that there is no other alternative.

This change was also backdated to 31 January 2020 to ensure that any will that was witnessed via video link under the duration of the pandemic will be acknowledged as legal. It should be noted that this is a temporary step that will last until the end of January 2022 or beyond, if necessary.

It’s important to note that the witness must still physically see the will – ideally on the same day – and then both witnesses must sign the will while on video link. For the sake of any possible future legal headaches, it may be a good idea to record this whole process.

From July 2020, HM Land Registry started accepting electronic signatures so as to allow for the speedier transfer of property (including mortgages, leases, etc.). However, there are also provisions in that the deed must still be written, there has to be a witness present to observe the deed being signed, and it must go through an approved electronic signature provider/platform (e.g. InfoTrack’s SignIT).

Can you create a DIY will?

It is understandable that with the lockdown in place that many are looking to circumvent any unnecessary human contact and putting together your own will is one way to do this. There is nothing in the law that says you can’t create your own will as the process is not regulated; however, be aware that this route can be fraught with problems should the document be found to have errors.

It is not uncommon to hear stories of people ending up in limbo over an estate due to the will not being properly drafted and, in a number of cases, these wills are found to be invalid. One survey found that approximately 40,000 families per year are left waiting for an estate to be processed due to DIY wills that have not been drafted correctly.

The most common mistakes tend to be related to signatures, failing to get the witness process correct and incorrect names. Witnesses are a common problem as the word ‘independent’ can be misconstrued. Not only can the witness not be a beneficiary of the will, they also cannot be a member of your family, they cannot be an immediate relation to a beneficiary (e.g. spouse, civil partner), they cannot be partially sighted or blind and they must possesses the mental capacity to have understood what they witnessed.

There are also other stipulations that need to be taken into account when it comes to a DIY will. For example, if you get married after writing your will, this will void your DIY will unless you included provisions for marriage.

This additional paperwork resulting from a poorly crafted will can end up just swallowing more money and sorting out these problems can end up costing far more money than paying the relatively small fee for even just a basic, professionally drafted will. These fees can tally up to 10% (and even beyond) of your estate’s total worth. This could lead to tens of thousands of pounds being unnecessarily wasted; as well as precious time. The worst case scenario is that your family might end up in a court case which will swallow up even more funds. As such, DIY wills have the potential to severely hinder – not help – your family.

If you’re thinking of writing a DIY will to minimise your interactions with people, it is important to weigh the above scenarios before you make your choice on how you want your will to be constructed.

Foys takes your will and COVID-19 seriously

At Foys, we know that there is a real worry amongst people seeking will services during the lockdown due to concerns surrounding the safety of such a process. We take the situation very seriously and we pledge to do everything we can to ensure that the process is as safe and secure as it can be.

We offer contactless appointments via Skype. If that isn’t possible, we can attend your property to take instructions without even entering the property. Due to adjustments put in place, we can even offer detailed instructions on how to properly gather your independent witnesses and perform this process correctly without our presence. If it’s not possible for you to have two witnesses, we are happy to attend and act as your witnesses at a safe distance. We also specialise in probates, trusts, lasting power of attorney, letters of administration and other related services.

When we say that you’re safe in our hands, we truly mean it.

If you’d like to learn more about our will-drafting services, simply get in touch using our online Contact Form or by giving your local Foys office a call today:

Retford: 01777 703 100
Worksop: 01909 500 511
Doncaster: 01302 327 136
Clowne: 01777 703 100 (Temporary Number)
Rotherham: 01709 375 561
Sheffield (Waterthorpe): 0114 251 1702
Sheffield (Chapeltown): 0114 246 7609