Witnessing a Will During the Covid-19 Pandemic

I’m fairly certain that almost everyone knows that for a Will to be valid you need to have at least two witnesses, and when signing the testator (the person making the Will) and the witnesses all have to be present and see each other sign. Up to now this has never really been a problem. But since Covid-19 has raised its ugly head, being socially distant and not entering other people’s homes, means that it has become difficult to always be in each other’s presence. So what’s acceptable to ensure that your Will is valid.

It’s all about line of sight. There are a number of cases dating back to 1688 which have developed the line of sight test, culminating in a most remarkable, and what I think is an interesting case, namely Casson v Dade (1781). The lady making the Will, a Miss Honora Jenkins, travelled to her solicitors’ office by horse and carriage. The office was very hot and she suffered from asthma, as a result she felt faint. She retired to her carriage with her Will and the witnesses. She duly signed her Will. Her witnesses then left her carriage and returned to the office where they signed the Will. So arguably they did not sign the Will in the presence of the lady making the Will. However, when the validity of the Will was challenged, Miss Jenkins’ maid gave evidence that at the moment the witnesses were signing, the carriage horses reared up causing the carriage to move into line of sight with the office window. She stated that had Miss Jenkins looked through the window, she could have seen the witnesses sign. As such, the Will was found to be valid.

And that principle has a link to how Wills can be witnessed today, in the current unusual situation. Where a client doesn’t have suitable witnesses within the household, then it may be necessary to witness the signing of the Will through the client’s window, in order to preserve social distancing. So, in the event you see two people in suits loitering outside of people’s windows peering inside like smartly dressed burglars – it might not be, it could be that they are witnessing a Will!

At a time when many people are considering making or updating their Wills, your Solicitor can advise you on how this can be achieved in a safe and legal manner. If you have any questions, or for a free, no-obligation, conversation about any of the above, please contact me.

If you have any questions, or for a free, no-obligation, conversation about any of the above, please contact me on 03300 242420 ext 17 or samantha.downs@nexa.law