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What are the legal rules about witnessing Wills?

View profile for Ed Ryder
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What are the legal rules about witnessing Wills

Currently you need to sign your Will in the presence of two independent witnesses. Obviously the pandemic has made it more difficult for people to comply with this and, as a result, there has been quite a lot of discussion amongst lawyers about whether the rules surrounding the witnessing of Wills should be relaxed. So far the Ministry of Justice has said that the law stays as it is.

What could happen if, prompted by the experiences of lockdown, the law were changed and the witnessing requirements were relaxed?  It is very likely that many Wills prepared under those circumstances could be contested on the basis that there was no-one present at the time of signing to confirm that the person fully understood what they were signing.

In the absence of witnesses, there could also be a potential rise in claims of ‘undue influence’; in other words, the person making the Will was forced into drafting it in a certain way - usually to benefit the person forcing them to do so.

The law concerning the witnessing of Wills was set in 1837. Whilst it might be an ‘old’ law, that does not make it irrelevant today. Contested Wills can cause untold distress and the correct witnessing of a Will is one of the ways of reducing the risk of problems in the future.

Although there has been great play in the media of the difficulties of Will witnessing during lockdown, the reality is that there are practical ways of adhering to the rules and my colleague, Pamela Precious, has previously written about this. So far not one Will we have prepared during this crisis remains unsigned because of Covid-19 or because of the stipulations of the 1837 Wills Act.

If you are thinking of making or changing your Will and have concerns about how best to ensure it is witnessed correctly, contact Harrowells' Private Client team.