Update on Will signing rules

It is understood that thousands of Wills made during the pandemic are invalid. These are largely ones made using DIY packs, or through Will Writers/”lawyers” (who are not Solicitors), although it is thought that there may be some solicitors who have also slipped up on this.

The problem lies in how the Will was witnessed.

The rule in England is basically (there can be fine tuning) that the person making the Will (the Testator) and the witnesses all have to sign in the “presence” of each other. If the Will is incorrectly witnessed, then it is invalid, no matter how clear the Testator’s intention was. Of course this can lead to catastrophe for those left behind. In the past, cases have turned, and Wills been found invalid, on whether one witness popped out to make a cup of tea. The safest method was always to sign at your solicitor’s office, but of course the need to protect people by social distancing has changed that. Some people have been “witnessing” over zoom or facetalk, so by video. The danger with that attempt is that while the witness can “see”, the technical legal requirement is to be “present” – which is physical.

The rules, by the way, are different for Lasting Powers of Attorney.

At Hewitsons, we have an instructions sheet to help our clients when they sign at home, with ways that friends or neighbours can safely witness whilst still fulfilling the legal requirement for the Will to be valid.

We are concerned, however, for those who may not have used our services. There has been speculation that the Ministry of Justice would ask the government to pass new laws enabling Wills which are invalid because they were incorrectly witnessed during the pandemic to be retrospectively made legally binding. In the early months the Ministry refused to do so on the basis that rushing into changing a law that is well known, and has been used for a century, could create as many problems as it solved. Recently the speculation has arisen again, due to the estimated sheer size of the problem. Hewitsons therefore contacted the Ministry of Justice.

No official announcement of a change has been made by the Ministry and although they are believed to be considering options to help with this problem, for the time being such Wills remain invalid .

Whilst on the whole, a change (if made) to retrospectively validate Wills made over the last few months where the witness “saw” the signature, but was not “present” during it, should help those people who did not get the correct advice, it does raise a further question. If the advice was incorrect on the most basic aspect of a Will (signing it), then what other mistakes have been made that will remain unknown until the Testator dies? At that time it will be too late to rectify mistakes.

At Hewitsons our “ Will maker” solicitors are not only fully qualified (and insured) solicitors, but also have the additional level of qualification of TEP - the Society of Trust and Estate Practitioners. If you wish to make a Will, and ensure it is well drafted – and valid! - please contact Alexandra Francis on 01223 447422 or click here to email Alexandra.