Due to the restrictions imposed on our ability to move around and interact with others as a result of the ongoing Covid-19 pandemic, it can be tempting to put off effecting Wills and Lasting Powers of Attorney (LPAs) until things have ‘settled down’, but do not delay – our Private Client team at Swinburne Maddison can help. Whilst our office remains closed, we are continuing to work remotely to help clients manage their estate planning and provide as much peace of mind as possible in these challenging times.
The pandemic has certainly presented a challenge when it comes to complying with the strict legal requirements regarding the execution of Wills and LPAs. However, with the benefit of careful guidance provided by our experts, you can ensure these legal requirements are met whilst also continuing to adhere to social distancing provisions.
Execution requirements for a Will
In order for a Will to be valid, the testator (the person making the Will) must sign the Will in the presence of two witnesses, who then attest the testator’s signature by signing the Will themselves. Digital signatures are not permitted, nor can the testator’s signature be witnessed via video call. Beneficiaries and their spouses must not act as witnesses as this would prevent them from inheriting under the Will. Case law indicates that if the testator and witnesses are in each other’s line of sight, this will be sufficient to satisfy the requirement of ‘presence’. It could therefore be possible to maintain recommended social distancing by witnesses being present in an adjoining room, provided that they have a direct line of sight when the Will is signed by the testator. Other options include witnessing through a window or over a garden fence, or setting up a table in the garden where one person at a time approaches the table to execute the Will using their own pen.
Execution requirements for a Lasting Power of Attorney
LPAs need to be signed by the donor (the person making the LPA) and all other persons named in the document (such as the Certificate Provider, Attorneys and Replacement Attorneys). To minimise contact with other people, the LPA can be posted to the people who need to sign it. However, each signature in the document must be witnessed, and again witnesses must be in the physical presence of the person signing. It is possible for someone that the Donor or Attorney/Replacement Attorney lives with to witness their signature, provided that they are aged 18 or over and have mental capacity. However, the Donor cannot witness an Attorney/Replacement Attorney’s signature and vice versa. If there is more than one Attorney/Replacement Attorney appointed then they may witness each other’s signature. Alternatively, as with Wills, signatures could be witnessed at a window, over a garden fence or at a table set up in the garden.
An improperly executed Will or LPA can lead to significant problems and challenges further down the line, which, in the worst cases, can even result in family rifts and litigation.
If you are in any doubt whatsoever as to the correct method of execution for your Will or LPA, please do not hesitate to contact a member of our experienced Private Client team who can protect their validity by ensuring that the documents are executed in accordance with all appropriate legal requirements.
For further information or advice regarding the above, or if you have any other queries that you would like to discuss with a member of our team, please contact us by telephone on (0191) 384 2441.
