Thursday, April 9th, 2020
Daniel Bacon looks at the challenges of writing or altering a will during the current Covid-19 emergency.
Pursuant to the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, Regulation 3, we are now operating in an Emergency Period and under severe legal restriction to our daily lives and habits as private individuals. It is not an exaggeration to say that the level and scope of peacetime restriction, being applied to this entire nation, is unprecedented. Our laws that govern the making of Wills date from an Act of Parliament passed in 1837, and the core principle is that a Will needs to be in writing by a testator over the age of 18, signed by the testator in the presence of two witnesses and then by them in his. The two witnesses must not be beneficiaries (or a spouse of a beneficiary) under the Will – a mistake on this point will not invalidate the Will itself but will cause that beneficiary’s legacy to fail.
The Emergency Period and COVID 19 creates problems for those wanting to write a Will. Solicitors offices are shut. Home visits by lawyers have come to a standstill. If a person is self-isolating then he or she is unable to seek legal advice in person or meet people for at least 12 weeks, and even if a family is together in lockdown it is likely that the members of that family would be beneficiaries under the Will and so could not act as witnesses in any event! Outside of the lockdown unit, and outside a few limited exceptions, people may not gather together in anything more than pairs under Regulation 7. A validly signed and witnessed Will requires three people to be present at the same time.
Understandably, many people are concerned that in the current health crisis their Will is not up to date, or does not exist at all, and it may be those in self-isolation who are most concerned in the circumstances.
There have been some suggestions that the formality requirements for writing a valid Will may be relaxed. Clarity has not yet been forthcoming, but it has happened before: personnel in Her Majesty’s Armed Forces are exempt from the usual formality requirements if they are on active service at the time of making their Will. Such Wills are called Privileged Wills. As reported by The Guardian, James McNeile, a partner at law firm Royds Withy King who has been working with the Ministry of Justice on the possible changes, has said that “options being discussed include Wills that do not need witnesses at all, as in much of mainland Europe; an Australian-style approach that gives judges greater flexibility over what constitutes a Will;… [electronic witnessing]; and provisions that mirror the way serving military personnel can make a Will.”
None of this has yet been decided and does not assist those who are concerned right now and may be tempted to take a do-it-yourself approach. The following is a list of guidance to make you aware of some Musts and Must-Nots if you are tempted by a spot of testamentary D.I.Y.
Guidance on Your Will under the Emergency Period
1. A Will must be in writing by a person over the age of 18;
2. A Will must be signed and dated by the person making it, and by two independent witnesses;
3. The two witnesses must not be beneficiaries, or a spouse of a beneficiary under the Will;
4. When altering a Will, you should not directly write upon your existing Will. This could have unintended consequences, and may invalidate part or all of your Will;
5. Altering a Will should be done by Codicil, and must be in writing, dated, signed, and witnessed by two witnesses who are not beneficiaries or the spouse of a beneficiary (the same formality requirements as for writing a Will in the first place);
6. Some gifts, and gifts to some people, will be exempt from Inheritance Tax – others will not. Altering a Will, or writing a Will, may affect the tax position of your Estate;
If you do not have a Will, or do not have a valid Will, then your Estate will pass under the rules of intestacy to your spouse or civil partner and to your relatives in a very specific order. If you have no spouse and no relatives, then your Estate will pass to the Crown;
When writing or altering a will, if you exclude a person who is financially dependent on you, then that person may be able to bring a challenge to your Will. This could prove extremely costly to your Estate, and it is therefore important to consider any claims that may be possible against your Estate when writing your Will.
Although our offices are closed we are still working and would be happy to arrange an appointment by telephone or video conferencing to discuss and draft your Will for you.
We wish you all the very best in these trying times.
Daniel Bacon is a Trainee Solicitor in Hanne & Co’s Private Client Team