How to witness a Will during lockdown

The rules around the correct witnessing of a Will are strict. If they are not complied with, the Will is not valid and relatives and loved ones may miss out on the inheritance that was intended for them.

The requirements for signing a Will are set out in the Wills Act 1873. The person signing the Will must do so in the presence of two or more witnesses who are also present at the time or must confirm to the witnesses that the signature is theirs.

The person signing must do so themselves or someone else can sign for them, in their presence and at their direction.

The two witnesses must each attest and sign the Will or acknowledge their signature in the presence of the testator.

This generally means that at least three people will be present together, signing the same document at the same time. With restrictions and precautions because of the pandemic, the Ministry of Justice has put new temporary rules in force.

New rules for the witnessing of Wills

With an increase in the number of Wills being made during 2020, the Ministry of Justice introduced legislation in September 2020 allowing the video-witnessing of a Will. It applies to Wills made on or after 31 January 2020 and is currently expected to apply for two years, until 31 January 2022.

Wherever possible, a Will should still be witnessed in the ordinary way. If this is not an option, then video witnessing can be considered.

Video witnessing of a Will Two witnesses must watch the testator sign and they should be able to clearly see him/her signing, but this can be done via live video link. Where possible, the process should be recorded and kept, case of any subsequent dispute.

The Will’s attestation clause will refer to the document being witnessed remotely and can also specify whether a recording has been made.

Before signing, the witnesses should be shown the Will via the camera, although they do not have to see the contents. It should be checked that they can see each other and the testator and that they will be able to see all parties signing. Ideally the two witnesses will be present together, but if this is not possible, then they can also be in separate locations.

Once the testator has signed, the Will should be sent to each witness for them to sign, preferably so that they sign within 24 hours of the testator, so ideally not relying on the postal service. Again, the testator and the other witness should see a witness signing.

Who can witness a Will?

The usual requirements for a witness to a Will apply, meaning that the following people cannot be a witness:

  • The spouse or civil partner of the testator
  • A beneficiary of the Will
  • The spouse or partner of a beneficiary
  • Someone who is under 18
  • Someone who is blind or partially sighted
  • Someone who does not have the mental capacity to understand what they are signing

If you would like to make a Will but you are concerned about how to have it witnessed, we will be happy to advise you.

For press enquiries and further information on your own wealth management plans you can reach out via the contact form or schedule a call via the Calendly widget (30 min initial enquiry option) below:

 

People prompted to make a Will by the Covid-19 pandemic

As the pandemic pushes the annual death rate above average, research has found that it has prompted people to make a Will.

A survey entitled the UK Wills, Trusts and Probate Market Report 2020 conducted by market research consultancy IRN Research found that of those with a Will, 4 per cent had made it because of the coronavirus situation.

The survey calculated that as 36 per cent of adults have a Will in place and the adult population of the UK is 53 million, then a total of around 19 million have a Will.

The main reason cited by most people for making a Will was simply peace of mind, with 67 per cent giving this answer. Next was ensuring that their estate would be distributed as they intended after their death at 49 per cent. For 36 per cent of those questioned, they made a Will to secure the future of their family, with 35 per cent making a Will when they had children.

In fact, there are many good reasons to put a valid Will in place, including the following.

To ensure your estate goes to those you wish to benefit from it

If someone dies without a Will, then their estate passes under the Rules of Intestacy to close family members. For example, if someone is married and has children, then the first £270,000 of their estate, plus all of their personal possessions will go to their spouse together with half of the remainder of the estate. Their children will share the remaining half of the estate equally between them. This could result in your children receiving less than you would like them to have.

To avoid the sideways disinheritance trap If someone has children and then marries for a second time, there could be a risk that their children will lose out. A marriage automatically invalidates a Will, meaning that the new spouse could inherit the bulk of the estate. It is then open to them to leave it to their children, as well as a risk it could be spent, for example, in care home fees.

To provide for your children

As well as leaving your estate to your children, you can also appoint a guardian for them if they are under the age of 18. If you do not make a Will, then it would be for the Court to decide where they should live.

To set up a trust

A Will can be used to set up a trust, which can be used for a variety of reasons. You can put money for your children into a trust until they reach the age at which you would like them to inherit.

You can also put your share of any jointly owned property into a trust, giving your spouse or partner a life interest in your share so that they can live there for as long as they want, but so that the proceeds of sale after they no longer need the home will pass to other beneficiaries, often children. 

To minimise the Inheritance Tax payable

By using estate planning, you can legitimately reduce the amount of Inheritance Tax your executors will be required to pay, meaning you can leave more of your assets to your loved ones.

It can be a complex area however, so taking professional advice is always recommended.

For press enquiries and further information on your own wealth management plans you can reach out via the contact form or schedule a call via the Calendly widget (30 min initial enquiry option) below:

 

New legislation allows video-witnessing of a Will during the Covid-19

In July 2020, the Ministry of Justice (MoJ) announced that video witnessing of Wills was to be made legal during the coronavirus pandemic. Our position is still to witness a will in the traditional way which is also the position of the MoJ. This is because witness a will via video, could mean upto 3 separate video sessions, preferrably within 24 hours of the testator signing. Umpteen problems could occur. In our opinion not worth the risk, if you can avoid it.

As health concerns pushed many to take steps to make or update their Wills, practical considerations made it difficult for the document to be legally witnessed.

Witnessing a Will

Normally, the signature to a Will is witnessed by two people. Where the person making the Will, known as the testator, is not able to sign themselves, there could also be a fourth person in the room, signing on their behalf.

Everyone must be present at the same time and watch the testator sign or acknowledge their signature, in the event that they had signed the document previously.

The witnesses need to add their names, addresses and occupations, but do not have to have read the Will or be aware of its contents.

The job of a witness is to be able to say that the testator is the person who made the Will and signed it, that their signature is genuine, that the testator has not been coerced into signing and that they are mentally capable of understanding what they are signing. The witnesses must be aged 18 or over and not the spouse or civil partner of the person making the Will or a beneficiary under the terms of the Will or the spouse or civil partner of a beneficiary. It is permitted for someone named as an executor to sign the Will however.

Video witnessing

To enable those who are self-isolating during the Covid-19 outbreak to be able to make a Will, the law now permits the witnessing of a Will to take place via video, for example, over Zoom or Skype. The government has made it clear that this should only be a last resort. The legislation currently allows video witnessing to take place until 31 January 2022, although this could be reduced or extended according to circumstances.

The witnesses will have to be able to see the testator signing the Will, so the video will need to show their face, hand, pen and the document, and not just head and shoulders. The signature will have to be a real signature and not an electronic signature. The video must be in real-time and not a recording.

After the testator has signed, the Will must be sent to each witness for them to add their signature, preferably within 24 hours.

The importance of having a Will

By leaving a Will you can ensure that your estate passes to those to whom you would like to leave it. It can also reduce the likelihood of family disagreements.

For your estate planning needs book a session with an expert via our scheduling window below:

 

ADL’s 2020 two sentence insights

Capitalism and technology have made the world glocal. It has and is bringing people closer together like no other point in human history. For example, today, because of the online gig economy, a start-up in London can contract affordable skilled services in the Philippines, without which neither would be able to add value to their local communities.

Yet it’s 2020, faced with a COVID pandemic our generation has never seen, and race relations at an all-time low since MLK, facing dire job losses and an unsurmountable national debt that I suspect will have a bigger impact on our domestic and foreign policy objectives since 9-11. But Europe, US and the UK are disunited and in disarray. I am intrigued like many others as to what the future could hold and how to prepare for it.

Here are my two sentence insights on the following areas:

  1. The UK economy: The performance of the FTSE index will not be reliable indicator of the economy as large companies benefit from a multi-billion-pound bailout under the guise of the Covid Corporate Financing Facility (CCFF) largely hidden from public view. However, I question whether some of these traditionally investment grade companies will be able to adapt in a post-COVID environment; failing to do so will have a serious impact on our pension and investment holdings.
  2. President Trump & the US elections: I wonder what would’ve happened if President Trump didn’t forcefully remove peaceful protestors outside the White House to walk to the damaged St. John’s Church back in June 2020 but rather reassured the protestors directly taking the knee in support be it only in principle of the #BLM movement? At the age of 74, President Trump is governing in an era of overwhelming racial divisiveness during a global pandemic, but should he be re-elected, and continue with a modus operandi focused on securitisation and divisiveness I suspect it will have dire consequences for a traditional liberal democracy and its international relations.
  3. Brexit: It appears Prime Minister Boris Johnson is taking his hardball negotiation cues from President Trump’s Art of the Deal which I don’t think can apply between nation states. I suspect his threat to break international law, is merely a crude negotiating tactic and if it did come to fruition it will only empower other emerging powers and undermine our own, which is why I don’t think a trade deal will be agreed in 2020.
  4. COVID & China: COVID will pass, humanity has overcome far greater threats and China will be under serious scrutiny over the extent they allegedly withheld key information about the virus that has sent the world on an expensive spin. But the next US administration will need to consider carefully as to whether they lead an adversarial approach towards China in an attempt to curtail its growing geopolitical influence which will no doubt have serious repercussions on its own economy thus curtailing its own global influence or to work with China on forming a new G2 platform or dare I say a G3 platform including Russia.
  5. Israel, Palestine & its neighbours: Two sentences on this? Yeah right.

Technology is breaking down borders which has been fantastic in allowing people the world over to recognise the overwhelming majority of us have similar shared sacred values. Exploiting difference will become much harder to do. But I wonder how inefficient democratic economies will compete with highly efficient undemocratic economies. There is a strong sentiment being made that we need to give up some of our freedoms to compete, but I say, we need more of it.

As humanity enters 2021 we continue to face serious threats including the competition for the earth’s limited resources and I can’t see how we can resolve these matters without an international effort, which will translate into treaties and mutual obligations which may mean our traditional conception of the nation state need also to evolve.

Mohammad Uz-Zaman is a private client trust and estate planning consultant who holds accreditations across regulated financial advice and estate planning. His career included 5 years at a highly respected think-tank. He holds graduate and post-graduate degrees and he is also an associate member of the Society of Trusts and Estate Practitioners (STEP). He works closely with financial advisers, general practice solicitors, accountants and investment managers from several major practices.