Signing your Will – how the recent law change can help you finally write your Will.

The legal statute that describes the requirements for signing your Will was written in 1837. That same year, Queen Victoria ascended to the throne, Michigan became the 26th US State, and Samuel Morse invented the telegraph.

It was a long, long time ago.

The 1837 Wills Act states that in order for a Will to be valid:

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),but no form of attestation shall be necessary.

Signing a Will
credit: 123rf

So let us break down exactly what this law means. And discuss the implications of this law in 2020, with particular consideration of COVID-19.

“A Will must be in writing”

In the context of the Wills Act, this means that you must write it down. You cannot verbally tell somebody what you would like done with your possessions. If you simply tell somebody, it is not compliant with the Wills Act, and a verbal promise has no legal standing.

Remember, this act was written before the invention of the phonograph in 1877, so it wasn’t referring to audio recordings.

In our modern context this means that a Will must be written on a piece of paper and signed in ink. Video Wills, audio recordings, and wishes typed into an app on an iPhone do not qualify as a Will in England. (although there was a case in Australia where an iPhone Will was accepted). It’s just not an approach that you would want to plan for.

This also means that faxed, copied, scanned and documents uploaded to the cloud are not readily accepted as legal Wills. They could potentially be accepted if it can be proven that the original was accidentally lost or destroyed, but again, it shouldn’t be a planned approach.

“A Will must be signed by the testator”

Back in 1877 we didn’t have many ways to accurately validate a person’s identity. Signing one’s name in ink was as good as it got.

Obviously today we have many digital signature technologies available to us including RSA technology invented in the 1970’s. But the law still insists that a scratched signature on a piece of paper is the only method of validation permitted on a Will.

Validation by signature

If somebody is unable to read or write, they are allowed to leave a “mark”. If they are completely unable to provide any mark on the paper, then somebody is allowed to provide that mark on their behalf.

“It appears that the testator intended by his signature to give effect to the will”

This means that the document must be identified as a Will. The opening clause of the Will typically says something like “This is the Last Will and Testament of me, John Smith”.

At the end of the Will, there is usually some legal language before the signature that clearly explains that it is a Will that is being created.

IN WITNESS WHEREOF I have signed this my Will the 26th day of July, 2020

“The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time”

In the presence. In the presence. This is the key phrase in this sentence. What does “in the presence” really mean? and how is this interpreted in a COVID-19 world?

Generally the simply requirement is that in order to prepare your Will you must gather two people in a room to serve as your witnesses. You then state that you are signing your Will. The witnesses must see you sign this Will.

Under COVID-19 restrictions solicitors started to talk about being in “line of sight”. The law doesn’t strictly speaking state that the witnesses and yourself must all be in the same room. But they must see you sign the document.

credit: 123rf

There were reports of people signing their Wills on car bonnets, over garden fences and through letter boxes.

It is fair to say that the term “in the presence” is open to interpretation, particularly during a pandemic.

“Each witness attests and signs the Will”

Once you have announced that you are signing your Will, and that you have then signed the document, your witnesses must sign. They must also see each other sign.

The witnesses play an important role. They are ensuring that you are seemingly competent when you signed the document. They are also there to make sure that nobody is pressuring you into signing something that you don’t want to sign.

This is why a witness cannot receive anything from a Will. They are really there in case there is a challenge to the Will based on a claim that you were either not thinking clearly, or somebody put you under duress.

What about a holographic Will?

We provide a full overview of the holographic Will is a separate post.

The definition of a holographic Will is one that is written entirely in your own handwriting. What makes these Wills special is that they do not require two witnesses. The thinking being that if you are writing one of these, you are probably in a desperate situation and two witnesses may not be at hand.

However, for all that you read online, holographic Wills (not signed by witnesses) are not legal in the UK. You can certainly write your Will entirely in your own handwriting, but you are still going to need to sign this in the presence of two witnesses.

How does the July 2020 law change help you in signing your Will?

During the COVID-19 pandemic people have been self-isolating and quarantining. In addition, many people have been putting their affairs in order including writing a Will.

It became clear that the law was not conducive to signing a Will if you and your two witnesses were required to be in each other’s presence.

It took some time, but finally, at the end of July, 2020 the law was updated to allow witnessing via video conference.

How does the Will signing law change help?

It means that the part of the Wills Act that required everybody to be in each other’s presence is no longer a requirement. Your witnesses can watch you via a video link sign your document. As long as they have a clear sight of you, and the piece of paper that you are signing, and that they can see you sign.

However, the part of the law that requires the witnesses to also sign the document has not changed. So once you have signed your document, you must send the document to your witnesses.

The law recommends that you do this as soon as possible.

Your first witness would then pop the Will in the post to go to the second witness. The second witness would then in turn send it back to you.

It’s not a seismic change in the law, but it’s an update to a law that is very rarely updated.

What about digital signatures?

Sadly, nothing was changed with respect to digital signatures. You are still required to scrawl your signature on the piece of paper, as are your witnesses.

Even with this law change, your final document will still be a piece of paper with three signatures on it. There is still some work left to drag that 1837 Wills Act into the 21st Century.

Write your Will today

The gathering of witnesses can be a real barrier to preparing a Will. Although your witnesses can be friends, neighbours, co-workers, any two adults who are not beneficiaries in the Will. It is possible that you don’t feel comfortable asking your next door neighbour to help.

It is also quite possible that your next door neighbour doesn’t feel comfortable serving as a witness, as they may not be entirely sure what their responsibilities may be.

The law change does widen your options for potential witnesses. Your witnesses can be a married couple, so you could for example have your cousin and her husband serve as witnesses even if they live in another town.

With one less barrier to preparing your Will, you could look at the Will writing service at LegalWills.co.uk as a viable option. For just £39.95 and 20 minutes of your time, you can have your Will completed.

Don’t put it off any longer. Write your Will today.

Will writing in troubled times

Today’s blog post isn’t quite like anything we’ve done before. We felt, all things considered, that it was important to connect with you all on a more human level. Even though we’re still working away behind the scenes, it certainly isn’t ‘business as usual’ for us — or for anyone for that matter.

It’s hard to ignore that things aren’t really all that ‘normal’. A lot of us are feeling uneasy, scared even, about what the future could possibly have in store. Those are natural feelings to have about the situation, considering there’s no official end date in sight to this crisis state we’re in. 

There is one particular group who, despite their fear and worries, are being asked to step up. We’re talking about front line healthcare workers; the unsung heroes who are risking their lives to keep us out of harm’s way. The doctors, nurses, caregivers, and medical staff are working around the clock in our hospitals; putting the care of others ahead of their own physical and emotional well-being.

Our CTO, Henry Raud, has a daughter who is a Registered Nurse, working on the front lines to diagnose and care for COVID-19 patients. “Every day, I am concerned about my daughter contracting this virus, especially given that thousands of healthcare workers around the world have already been infected, and far too many of whom have died. As a father, I can’t help but feel concerned for my daughter’s safety. But more than anything, I am extremely proud of her for what she is doing to help people to get through this crisis. She absolutely loves what she is doing, despite all the risks. I can’t imagine any father being more proud than I am right now. And I am thankful for all of the other healthcare workers out there, risking their lives in the same way to help everyone that they can.”

Healthcare workers, just like Henry’s daughter, are keeping our families, friends, and communities safe. Even with a dangerously low supply of PPE and medical resources across the board, they continue to show up to do their part to help us all through this. They are protecting those nearest and dearest to us — and we wanted to do our part to help protect what’s nearest and dearest to them; their families, their friends, their assets. It really is the least we could do.

That is why we have decided to join our peers in the online estate planning community in offering free Wills and Power of Attorneys to our healthcare heroes. These healthcare heroes are being directed to get their affairs in order, while they continue to combat this disease. Helping facilitate the process for them is the best way that we can give back.

Our mandate has always been to make estate planning affordable and convenient, and it is our core belief that every adult should have a Will, Power of Attorney, and Living Will in place. We have worked for 20 years to remove the barriers to doing this. Especially now, the importance of being able to prepare these documents from the comfort of your home comes into sharp focus.

To start working on your Will, please send an email to [email protected] from your healthcare work email account with your Name and Employee ID. There you will receive instructions on opening your account and preparing your Will.

Thank you! We truly appreciate everything that you do to keep us well!

Tim Hewson, CEO, LegalWills

How to make a Will – for somebody else…today

We are in the midst of a very strange time with the outbreak of the COVID-19 pandemic. People are being asked to “self-isolate”, some people are being quarantined, and thoughts are turning to estate planning and getting one’s affairs in order.

We get this question a lot: “Can you let me know how to make a Will for my parents, or an elderly neighbour?” You may have a friend or family member who needs a Will, but they are not very good with computers. You have heard horror stories about the blank DIY Will Kits and how they don’t produce quality final documents. Surely there must be another option.

You may also be thinking about creating a Lasting Power of Attorney for property and financial affairs, or a Lasting Power of Attorney for Health and Wellfare. Perhaps you’re even considering an Advance Directive.

You may not want to book an appointment with a solicitor. You certainly don’t want strangers coming to your door (or your elderly parent’s door) offering to write a Will. Is it possible to prepare documents for somebody else without an appointment, and without leaving one’s home?

Let’s be clear from the outset. The person that you intend to prepare the Will for must have testamentary capacity. It’s one thing for them to not like computers, but if they are struggling with a cognitive illness like dementia or Alzheimer’s, then this is a non-starter. The person must know that they are working with their Last Will and Testament, they must understand the contents of that document, and they must appreciate the implications of what they are signing.

How to Make a Will
credit: 123rf

We would also recommend steering away from this approach if you are planning on making yourself a beneficiary in the Will, particularly if other people have an expectation that they will be beneficiaries, but are going to be disinherited. For example, if you are one of three siblings, and you want to help your elderly mother prepare her Will leaving everything to yourself, there is a good chance that the Will is going to be challenged and ultimately rejected by the courts. Likewise, if you are a care provider and planning to include yourself as a beneficiary, we would not recommend taking this approach.

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How can I update my Will?

Most people don’t have a Will. And of those who do, many are not kept up to date. We often hear from people who prepared a Will decades ago, sometimes before they had children. They have a sense of knowing that their Will is in place, but they know in their heart that the Will is out-of-date, and probably doesn’t reflect their wishes. They need to update a Will, but they are not sure how to do it in the most cost effective way.

Unfortunately, the traditional approach to writing a Will is expensive and inconvenient. The same applies to updating a Will. The reason why people don’t update their Will is that same reason that most people don’t have a Will at all – there simply isn’t the time to get it done.

Fortunately, there are now a number of options to making sure that your Will is up-to-date.

Using a codicil to Update a Will
credit: 123rf

When do I need to update my Will?

1. If your Will is automatically cancelled.

There is only one situation where your Will ceases to function (other than the document being destroyed) – If you get married, and your Will was written before you got married (unless the Will specifically states that it was written in contemplation of marriage).

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Writing a Will for the non-traditional family

Many of us now live in non-traditional, or “non-nuclear” families. According to Encyclopedia Brittanica “A nuclear family, elementary family or conjugal family is a family group consisting of two parents and their children (one or more).”

It is the classic family structure which is still common, but according to every statistical analysis, a decreasing number of families meet this criteria.

We are seeing far more one-parent families, “blended” or “stepfamilies” where one partner is not the biological parent of the children, civil partnerships and three parents living under the same roof.

According to data coming from the Office for National Statistics, the number of marriage rate has halved in the UK since the 1970’s. In 2017, the married or civil partner couple family remains the most common, but the cohabiting couple family growing the fastest (doubling from 1996). In fact, about half the population of the UK are either single, divorced, widowed or in a civil partnership.

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