By Tiggy Hawkesworth
In early 2015, an elderly man who thought he was having a heart attack whilst in a McDonald’s restaurant in Canada scribbled down on a thin, brown napkin that his estate should be split evenly between his seven living children, who he then listed.
It turned out the elderly man was not having a heart attack, but he died seven months later in December 2015, having made no further Will. Following his death one of his daughters disputed the validity of the napkin Will, questioning its authenticity as he had misspelt her name and she could not verify that it was his writing. Three of the siblings filed affidavits stating that their father had written on the napkin. Over four years since his death, a judge in Canada has ruled that the napkin Will was valid and should be honoured. The Judge concluded that, as the testator thought he was having a heart attack when he wrote on the napkin, he had the requisite testamentary intention to create a Will.
The COVID-19 outbreak has caused many people to consider their estates and how they wish their property to be left. Although “DIY Wills” may seem like a simple and cheap option, they can often result in disputes, lengthy delays and substantial expense following the testator’s death. Even during such unprecedented times, it is imperative that you ensure your Will is valid if you want your wishes to be carried out on your death and to avoid any potential litigation.
Requirements for a valid Will
In England and Wales, in order to have a valid Will, you must:
Have the capacity to make a Will
Have the intention to make a Will; and
Comply with the required formalities.
A testator must have the capacity to understand the nature of making a Will and its effects.
Capacity can be a concern when drawing up a Will for an aged or seriously ill individual. There is a “golden rule” that ideally a capacity assessment should be undertaken in such cases, to provide certainty, and such Wills should be witnessed or approved by a medical practitioner. Contemporaneous notes should be taken when taking instructions and at the Will signing.
With the National Health Service currently stretched to its limits obtaining a doctor’s report confirming the testator’s capacity to make a Will is proving difficult. However, there are private practitioners who are undertaking capacity reports via video conference where possible. A report should be obtained if there is any uncertainty to capacity, or even just to demonstrate that an elderly person making a new Will definitely had the capacity to do so – this can reduce the likelihood of a challenge to the Will following the testator’s death on the grounds of lack of capacity.
The testator must have intended to give effect to his Will when signing it. Therefore, it is advisable for the testator to sign their own Will to avoid uncertainty. If another person signs on behalf of the testator, the direction must include some positive communication by the testator.
The Will must comply with the formalities set out in section 9 of the Wills Act 1937:
It must be in writing.
It must be signed by the testator who has attained the age of 18 (or by another person in the testator’s presence and at their direction). It must be a ‘wet’ signature, an electronic signature will invalidate the Will.
The testator signature must be made or acknowledged in the presence of at least two witnesses.
The witnesses must then attest and sign the Will in the presence of the testator (but not necessarily in the presence of the other witness).
Under the current governmental guidelines on social distancing there are concerns about Wills being validly executed. We understand that the Ministry of Justice is examining ways to relax rules around Will writing in England and Wales during the COVID-19 outbreak, whilst ensuring that any new rules are balanced against the risk of fraud and they continue to protect the vulnerable. However, without any updating guidelines yet, all Wills must be executed in accordance with the Wills Act 1937.
A witness should be at least 18 years old and should not be a beneficiary under the Will or married to or in a Civil Partnership with any beneficiary under the Will. Therefore, it may be likely that those self-isolating in the same household cannot be witnesses to each other’s Wills.
So how can a testator’s signature be validly witnessed whilst following social distancing guidelines? The Wills Act 1937 requires that the testator and the witnesses are “in the presence” of each other whilst signing. This can happen indoors or outdoors, it does not require for the individuals involved to be within two metres of each other, it is just imperative they maintain visual contact during the Will signing. All parties can step forward one at a time, wear disposable gloves and use different pens to reduce any risk of transmission.
In the case of Casson v Dade , the testatrix could see her witnesses attest her Will through the window of her carriage and the window of the attorney’s office and this was held to be valid. This could suggest that it is permissible for neighbours to witness the execution of the Will through a window. Although Casson v Dade was heard prior to the introduction of the Wills Act in 1937 (which currently governs the execution of Wills), this option should certainly be considered if the testator’s current Will does not reflect their wishes or, if they do not have a Will, to ensure they do not remain intestate.
It is also important to note that a Will will be held invalid if the witnesses apply their original signatures to a photocopy of the testator’s signature. Everyone must place their ‘wet’ signatures on the same document.
With the growth of video conferencing, it has been suggested that this facility can be used to overcome the barriers imposed by social distancing guidelines. However, we would advise that all parties to the Will are physically present for the Will signing, be it over the garden fence, through a window or across the room.
If you would like advice on Wills and estate planning please contact a member of our Private Client team. Alternatively, if you have concerns about the validity of a Will and would like advice please contact Candy Stockton firstname.lastname@example.org