April 2020 – Making a Will in Lockdown

Author: Mitchells Roberton
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Traditional will-making

The traditional notion of making a will usually involves:

  • a meeting at a solicitor’s office to discuss the terms of the will and give instructions;
  • the solicitor  then sending out a draft of the will for review; and then
  • another meeting at the solicitor’s office to sign the finalised version of the will at which a witness will be present to witness the signing process and also add his or her own signature to the will to evidence that.

Lockdown will-making

  • That traditional approach involving face to face meetings has to change during  the current lockdown. But whereas emergency legislation in the form of the Coronavirus Act 2020 adjusted the rules about registering a death during lockdown (see the BPU for last month here) there were no emergency legislative provisions made about signing wills.
  • Happily, the Law Society has produced useful guidance here as to how to go about this during lockdown. One of the key points in this guidance is flagged up below. But first the general rules about what qualifies as a “formally” valid will are considered.

What counts as a formally valid will 

  • Of course, in order to make a valid will a person (“the will-maker”) must, in particular, be aged at least 12 and have the mental capacity to make his or her will.
  • But as far as the requirements for actually signing the will are concerned  i.e. its “formal” validity these are set down in the Requirements of Writing (Scotland) Act 1995 (“the 1995 Act”).  In principle, the requirements are modest: in order for a will to be formally valid it must be signed at the end of the last page by the will-maker. That is all.
  • But, in practice, that is not the whole picture. When the will-maker dies there generally needs to be an application to the court in order to administer his or her estate. As part of that process the will has to be sent to the court. If the will has simply been “signed at the end of the last page” (as is sufficient under the 1995 Act) the court will nevertheless require sworn statements from two people familiar with the will-maker’s signature to affirm that it is, in fact,  his or her signature.

A formally valid will – which is also “self-proving”

  • That is one of the reasons why, as a general rule, wills are not only signed by the will-maker but an independent person is present in the room with the will-maker and “witnesses” the will-maker’s signature and adds his or her own signature to the will as a “witness”. That is a key requirement of making the will what is called “self-proving” so that when the will-maker dies the court needs nothing more to establish that it is “formally” valid.
  • Another key requirement for this “self-proving” status is that the will is signed not just at the end of the last page but on each page.

Law Society Guidance about video witnessing of lockdown wills

  • The Law Society guidance covers a range of matters concerning the making and signing of wills during lockdown. Here we focus on just one  aspect: the witnessing of a will by video link.
  • As mentioned above, traditionally, a will is signed by the will-maker at the solicitor’s office and someone there acts as the witness. All this happens in the same room at the same time as part of one continuous process – and its being “one continuous process” is a legal requirement.
  • The Law Society guidance outlines procedures for the witnessing of the will-maker’s signature during lockdown being made via video link and then for the signed will to be sent back to the solicitor by post for the witness to sign the will on its return. There will clearly be quite a time-lag between the video witnessing  and the postal receipt of the returned will when the solicitor witness adds his or her signature as a witness of the will-maker’s signing.
  • The fact that there is that time-lag between the witnessing of the will-maker’s signing by the witness and the addition of the witness’s signature to the will might raise doubts as to whether the process was actually “one continuous process” – as the law requires.
  • But it is considered those doubts would be ill-founded: after all there is still “one continuous process” as required.  It is just a more long drawn-out continuous process than it would be if the will-maker and witness were physically present in the same room. That must be the conclusion on which the Law Society guidance is based.

If video-link witnessing is not possible

  • It is clearly preferable to have a “self-proving” will i.e. one which is witnessed so that no additional procedures are needed to establish its formal validity when the will-maker dies. But a witness being present can be problematic in these days of self-isolation and it may not be possible to arrange for video-link witnessing.  In such cases all is not lost. As explained above, a will may still be “formally” valid in terms of the 1995 Act if it is simply signed at the end of the last page by the will-maker.
  • If the will-maker then dies and an application is made to the court in order to administer his or her estate the court will require statements from people familiar with the will-maker’s signature to affirm that it is indeed his or her signature. But generally there should be people able and willing to do this and the additional procedures required are not onerous.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Heather Warnock: email Heather@mitchells-roberton.co.uk

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