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Who can witness my Will with social distancing measures in place?

Who can witness my Will with social distancing measures in place?

01 May 2020 Macnabs Solicitors

We as a nation have entered into uncharted territory as a result of the current coronavirus (COVID-19) pandemic. With our daily office trips and weekend activities stripped from our usual routine, we have been put in a state of unease about what we can and cannot do. 

Although there are not many things we can control just now, one thing we can do is take this extra time at home to reflect on our estate planning. Getting your legal documents in order, especially your Will, is one of the best ways to use this time effectively.

At Macnabs, we are here to help you through this unprecedented time, offering free initial consultations over the phone to discuss your specific case. You can contact us on 01738 623432 or by completing the online enquiry form, and one of our specialists will get back to you as soon as possible.

The legal requirement for witnessing Wills

Measures to stay at home and self-isolate were put in place to help battle the effects of coronavirus. With the majority of our days being spent indoors, the current pandemic has given many people the opportunity (and reason) to consider their Will. 

While these restrictions are making it more challenging to prepare for the future, there are ways in which you can write a new Will or revise your existing Will during this time. 

In Scotland, a Will can only be made by a person (the testator) who is over the age of 12, in writing, and by someone who is of sound mind. Under normal circumstances, a new or amended Will must also be witnessed and will only be deemed valid when it is:

  • Signed by the testator on each separate page
  • Witnessed on the last page by one person over the age of 16 and with no mental impairment

When the Will has been signed and witnessed, then it is considered legally valid.

You can read more about the requirements for writing a Will in Scotland by clicking here.

Social distancing – can I still make a Will?

With the strict measures of social distancing and staying at home in place, there is public confusion over what this means for having witnesses to ensure your Will is legally valid.

For some, this may be made possible if they live with someone who is not a family member or beneficiary, e.g. a flatmate. However, for those whose current household consists only of their close relatives or someone who stands to benefit from your Will, the situation becomes more complex as using them as a witness may invalidate the legacy left to them on your death.

For the time being, and until the current measures are relaxed, we will be offering our private client services by telephone and video facilities, handling new and existing instructions for Wills and continuing to provide effective legal assistance. Call Macnabs today on 01738 623432 to see how we can help you. 

Temporary guidance for Wills in Scotland

On 25 March 2020, the Law Society of Scotland (LSS) produced temporary guidance to help with the current problems surrounding the execution of Wills. The LSS categorised the short-term solution into two sections:

1) Instructions taken before coronavirus measures

If you had already instructed a solicitor for your Will, the document can be posted (or emailed via PDF) to the testator for signing. This is based on the assumption your solicitor was able to assess your capability and susceptibility to undue influence and had no concerns preceding the social distancing measures.

An available witness

If a suitable person is available to witness the testator’s signature, then you can be given directions to complete the execution of the Will as normal. The Will can then be returned to your lawyer if you so wish.

No witness physically present

Under the current circumstances, it may not be feasible to have a witness physically watch the testator sign their Will. In such cases, the LSS has said it may be possible to arrange a video conference (such as Skype or FaceTime) between you and your lawyer. By doing this, the solicitor can witness you signing the Will or have someone join the video link. The Will would then be returned to your lawyer.

The LSS believes that, if the witness was visually able to see the testator sign the Will, they can legally sign and complete the already-signed Will from the testator to make it valid.

No witness or access to video facilities

For those who are unable to make any visual contact through a video link and there are no witnesses available, your signature alone at the end of the Will is sufficient to make it valid. At this point, the Will would be returned to your lawyer.

However, should the Will remain as is on the death of the testator, it will be necessary as part of the Confirmation process to ‘set up’ the Will as being signed by the testator, by affidavit evidence as to their signature. As such, the LSS recommends a properly executed version replaces this Will once the current measures of social distancing are lifted.

2) Instructions taken during lockdown

If you are an existing client with a firm and would like to instruct your Will during this period, you will be subject to, at the very least, a telephone conversation with your lawyer. The LSS says the preferred method would be a video call, as stated previously.

I am a new client – can I instruct you during these measures?

For those instructing a solicitor for the first time, a meeting with your chosen lawyer is possible via a video link. It’s important to note your solicitor still has a legal obligation to ensure you have capacity and are not being unduly influenced to instruct or amend your Will.

Identification checks

When a client is entirely new to a firm, verifying who you are will need to take place over the video call, with the testator holding up identity documents for the solicitor to view. The solicitor can take a screenshot of the video conference or have the client scan the documents used in the call to confirm their identity to the lawyer.

The LSS has made it very clear that, despite the obstacles the coronavirus has caused, they are unable to waive the requirement for identity checks to be carried out. This means that, if you are instructing a firm for the first time, you must have access to video facilities.

Contact our Wills lawyers in Perth today

Although this is a surreal and difficult time for everyone, the COVID-19 pandemic highlights the importance of ensuring your Will is prepared for unexpected circumstances such as these. While our office remains closed, our lawyers at Macnabs remain fully available to speak with you today. Do not delay, get in touch with our Wills team today on 01738 623432 and we will help ease any concerns you may have about the execution of your Will during this crisis.

This guide does not constitute legal advice and is provided for general information purposes only. If you require specific legal advice you should contact one of our lawyers who can advise you based on your own circumstances.

Please note this information is accurate as of 01/05/20 and is subject to change as official guidance is adapted to reflect the implications of the virus.

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