The Importance of Witnesses
8th July, 2020
Another element for making a Will is released – looking for a signature and witness, although legislation says an attestation clause is not required.
You may have quite a bit more time on your hands at the moment and this may mean you start thinking about those things that you have been meaning to get around to. One such ‘job’ often avoided is writing your Will.
Having a Will in place provides assurance that when your time does come the manner in which you want your estate distributed will be set out clearly and lawfully. When a Will is drafted you also have an opportunity to consider the best ways of leaving things to maximise the value of your Estate and to ensure what you do want to pass to your family/friends/charities goes to them rather than the Chancellor (or in some cases the Queen or Prince Charles).
Wills can be relatively simple documents setting out who you want to be in charge of your affairs, who should look after any children you may have, where certain special items should go and where the majority of your Estate should pass. A professionally drafted Will can also provide some assistance if there is potential for conflict within the family – such as appointing independent Executors or dividing the Estate in a manner that may reduce the acrimony between individuals whilst honouring your wishes.
An interesting issue that has come about since the Government’s announced lock down is the difficulties that this will present in ensuring that a Will is correctly executed (i.e. legally valid).
The Wills Act 1837 specifies the requirement for the signing of the Will, it also states that the Will must be signed in the presence of two witnesses.
When we draft a Will for someone we offer our services to act as the witnesses. This ensures that we have oversight in the manner in which the document is signed and are there for any of the last minute questions clients often have before signing. An added bonus to this service is that we are able to confidently provide an independent witness – i.e. someone who does not have an interest in the Estate.
This brings us back to the ‘lock down’ and the restrictions being imposed on us. Whilst we can still ‘see’ our clients via video and speak over the phone and via email, clients cannot attend our offices which means we cannot act as witnesses. We can send the approved, final version for signing to the client – we can even email it to be printed at home but without it being duly signed it is not a valid Will. There is no value to having an unsigned Will sitting in an envelope or in an inbox. It has to be legally “executed”.
As matters stand, you cannot invite your neighbour over for a cup of tea and a quick Will signing – or do as one of our colleagues did and bring out the Will in a restaurant and have a waitress and another patron act as witnesses. Equally, it’s very unlikely that you can have your spouse or children sign – unless you are not leaving them anything (which would be unusual but perfectly allowed). In most people’s cases the other occupants with them during self-isolation are unsuitable witnesses as they would not be independent.
Whether over the coming years there will be cases asking the Court to consider relaxing these laws in light of the current state of emergency is possible – but not something we would recommend gambling on.
However, these unprecedented times bring to mind a very odd legal case from 1781. In Casson v Dade the Court ruled that a Will had been validly executed when the testator (the “owner” of the Will) signed her Will in the presence of two witnesses and then returned to her carriage. Once there, the two witnesses came to the window, and in sight of the testator who was seated in her carriage, they then duly attested her signature.
We take from this case (and many others) that witnesses do not need to be in the physical presence of the testator to enable due attestation. They can, for instance look through the front window as the testator signs the Will and then have the document passed to them (safely) and then can sign with the testator watching them from the house. Whether you could grab two witnesses who are on their one session of exercise that day or coming back from the shops is a separate issue.
However, if you do want to execute a Will during this unprecedented time please ensure you comply with Government restrictions.
Please get in touch with Michael Brierley or Jeremy Duffy or one of our Private Wealth department to discuss anything in this article or your own needs. We are able to conduct initial meetings via video and will work to ensure communication works best for all concerned.
The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.