The last few weeks have seen huge changes in the way we live our lives. The pace has been so fast that many are struggling to keep up with events.
How to make a will and adhere to social distancing
For England & Wales
The COVID-19 (coronavirus) crisis has caused a surge of interest in making and updating wills. Many solicitors’ firms are keeping their virtual offices open and their staff are able to work from home. Many are able to take instructions from clients via telephone, Facetime and Zoom instead of face to face meetings. Drafts can still be sent via email or via post. We suggest that before your first “meeting” with your solicitor that you prepare as much as possible, think about what questions you want to ask, put together a list of your assets and finances, think about those that you wish to include in your will and those you wish to oversee it. Many firms do send out a questionnaire to complete and return in advance. Once approved and agreed, final copies can be sent to you for signature.
How to get a will witnessed and adhere to social distancing
Social distancing can make it difficult to find witnesses to wills. The Wills Act 1837 states that to be valid a will must be signed in the presence of 2 witnesses so that all 3 – will maker and witnesses – are present together. The crisis has pushed people to be creative in their arrangements. For example, wills can be witnessed by neighbours through a window or from the garden gate as long as all 3 are present together and can see each other sign. The witnesses then add their signatures, names and address in case they need to be contacted later to prove the signing of the will. Everyone would need to use their own pen and perhaps wear gloves.
Solicitors for the Elderly and the Law Society are pushing the government to pass emergency laws to relax the witnessing rules. Soldiers on active service have long been able to make a will without witnesses and the law may be changed quickly to extend this privilege to all.
However, the law relating to wills in Scotland is different and, in particular, the law relating to the signing of wills in Scotland is very different from the law currently in force in England.
For Scotland
In this section, we highlight some important practical differences when making a will in Scotland during lockdown. Much of the information in the section above on England and Wales applies to making a will in Scotland too. However, the law relating to wills in Scotland is different and, in particular, the law relating to the signing of wills in Scotland is very different from the law currently in force in England and Wales
Should I make a Scottish will?
It is important to note that just because you are living in Scotland, it does not necessarily mean that your solicitor will advise you to make a Scottish will. It is usually advisable for somebody who is domiciled in Scotland to make a Scottish will. Your solicitor will be able to discuss this with you in the context of your personal circumstances and advise you whether you should make a will in Scotland or should make will in accordance with the laws of another country.
How do I sign my Scottish will?
Just as was noted in our previous blog, wills can be posted or emailed to you for signing in Scotland. If the document is emailed to you, you will need access to a printer as you cannot sign your will electronically.
If you are making a Scottish will, it is not essential that your signature is witnessed by another person for the document to be deemed legally valid. It is, however, strongly advised that your signature is witnessed by one other person (unlike the two witnesses required south of the border). This is because if your signature is not witnessed, then your will would have to be ‘set up’ in court, in the event of your death. This process can be costly and time-consuming because it means that affidavit evidence as to your signature has to be obtained after your death. An affidavit is a legal statement sworn in the presence of a Notary Public. It is therefore advisable, wherever possible, to have your signature on your will witnessed to avoid the need for this.
Again, as was noted in our last blog, you can arrange for your will to be witnessed by somebody standing at an appropriate distance in the light of the current guidelines.
It is imperative that the witness watches you sign the document, but they do not need to read it. Your witness must be over the age of 16 and should not be named in the document.
Alternatively, if you are unable to arrange for your signature to be witnessed by somebody in your presence, or you are uncomfortable doing so, your solicitor can witness you signing your will over video link technology such as FaceTime or Zoom, so long as the solicitor feels that it is appropriate for them to do so in all the circumstances.
Wills can and are still being made during the current circumstances. It is important that you explore the possibility of making a will with your solicitor if you haven’t had the chance to do this already.