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.
credit: 123rfSo 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 signatureIf 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: 123rfThere 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.
Tim Hewson is one of the founders of LegalWills.co.uk.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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