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25 March 2020 | Comment | Article by Roman Kubiak TEP

Self-isolation and wills: emergency legislation considered

In these unique and challenging times, we and the profession as a whole are seeing an increase in enquires from people looking to make or update their will due to COVID-19 Coronavirus.

The profession has mobilised to meet this demand and the government has designated solicitors involved in the execution of wills as ‘key workers’ to try to meet this demand.

The very nature of what constitutes a valid last will and testament, as defined by the Wills Act 1837, currently presents some logistical difficulties. While instructions can be taken remotely and drafts e-mailed for printing, to make your will legally binding you and your chosen witnesses must physically sign the document with a wet signature and you all have to be physically present to do so.

As witnesses should be people who are impartial to your circumstances, this presents a challenge for those who are isolating with family as they, more than likely, will be unsuitable witnesses. Equally, groups of more than three people are not permitted for the next 3 weeks. So logistically, how do people execute their wills in lockdown?

The consensus amongst the profession currently appears to be that there is no clear solution for this issue within the law as it currently stands.

For that reason, the Law Society is currently in urgent discussions with the government to see if they can agree emergency legislation to change the formal requirements needed to finalise a will in the current circumstances.

An update from the Law Society is due shortly, but the good news is that this is not coming from a standing start. The Law Commission already undertook an extensive consultation in 2017 on modernising the law on wills. Included within that consultation was the possibility of both allowing for electronic signatures on wills and also granting courts the power to dispense, on a retrospective basis, with the formalities required to make a valid will.

This would mean that if someone passed away having attempted to execute a will but not having met all the formalities (such as having their signature witnessed) then an application could be made to have the will declared valid anyway. This is a power already exercised in some other jurisdictions.

It should also be noted that the law also allows for ‘privileged wills’ which do not require the same formalities and applies to those in active military service.

This is a fast-moving situation and we will keep you informed of any further updates.

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Please make sure you are abiding by the latest government guidelines surrounding Coronavirus when you are signing and witnessing your will.

If you want any more advice on how to make a will, please do not hesitate to contact us. You can also find more general information about wills on our dedicated wills page.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.


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