Indications are that many people concerned at the Coronavirus outbreak have made a new Will or codicil as they are worried about what might happen to their property and assets.
Those making Wills as a result of the pandemic may do so when they are unwell, or the new Will is made in a rush in order to put “pen to paper”. Whatever the reason, a hastily prepared Will or one that does not meet all the legal requirements can very often result in a later dispute over the validity of the Will.
There are no immediate plans by the Government to reform the law relating to the signing of a Will despite the outbreak. This can present considerable difficulty where the person wishing to make a new Will (or changes to their existing Will) is in isolation at home or in hospital. In particular, as the law currently stands in order to be a valid Will, the document must observe Section 9 of the Wills Act, 1837 (as amended).
Ideally, the document must be signed by the person making the Will in the presence of two or more independent witnesses who must be present at the same time as the maker of the Will. Once signed by the maker of the Will, the witnesses themselves then sign in the presence of the maker of the Will. The witnesses do not need to read the Will itself.
It is possible for some other person in the presence of and under the direction of the maker of the Will to sign the Will on his or her behalf and for the maker of the Will to acknowledge his or her signature on the Will to the witnesses but the main point is the need for the maker of the Will and the witnesses to be in line of sight of each other during the process.
No one should seek to break social distancing rules when so much is at risk regarding their health and the health of others. How may the process of the required rules be observed when the signing the Will takes place?
As mentioned above, the witnesses and the maker of the Will must have clear line of sight to each other but they do not need to be in the same room. The witnesses could watch the maker of the Will sign through a window or in the porch. Indeed, the process of signing the Will by the maker could even take place over the garden fence. It is clearly important that the witnesses see the maker of the Will sign and that the document passes to them without them losing sight of it.
If the person who wishes to make a Will is totally isolated, for instance in a hospital ward, or too ill to sign the Will for themselves then as long as they have read the Will or had it read out to them it could be passed to someone outside the ward who could sign the Will at the makers direction in the presence of the witnesses. The person signing on behalf of the maker of the Will must receive a positive direction from the maker to sign on their behalf and the Will itself ought to record on its face that the Will is being signed on behalf of the maker and at his or her direction. The Will must clearly be seen to pass from the maker to the person who is to sign on his or her behalf and the witnesses for their signature. It would make sense for the exercise of signing the Will to be recorded in writing and, in the days of mobile phones, videoed.
Aside from the difficulties that may present themselves relating to the signing of a Will, it is also important to ensure that other aspects are considered. It is not uncommon for those disappointed with an inheritance or have been left out to assert that the Will does not reflect what the maker wanted. It might be asserted that the maker was not of sound mind or that he or she was not a “free agent” when they gave instructions for the making of the Will or when they signed it. Regrettably, there are many instances were the validity of a Will is challenged allegedly due to the maker being unduly influenced.
It is possible that as a result of the COVID-19 pandemic changes to the way in which Wills are created will be forthcoming soon. Even before the virus changed our lives discussions over changes to the law were underway. For the moment, we are required to ensure that the current law and procedures are observed. Great care must be taken to ensure that what the maker of a Will truly intended is recorded in a valid Will. You may also register your clients’ Will on The National Will Register to record the existence and location of which the Will is stored. This will help to ensure that the Will can be repatriated with the Executors of the estate following the testator’s death. Despite the practical difficulties presented it remains possible, in most circumstances, to achieve the desired result.
This article was written by Tony Pearce, Solicitor, member of The Association of Contentious Trust and Probate Specialists and Editor of the Certainty Contentious Probate Hub & Area.