Opinion  

Is there a way for a will in lockdown?

Ken Davy

Ken Davy

They say that where there is a will there is a way. But, when it comes to making a new will, or updating an existing one, the lockdown provides a real challenge. 

The reality is that Covid-19 and its dangers have resulted in a dramatic increase in the number of clients seeking guidance on wills.  

The problems this has created under the current isolation restrictions are formidable.

To be valid, a will in England must be in writing and witnessed by two individuals – in Scotland, only one witness is required.

A further complication is that beneficiaries are not permitted to act as witnesses. 

Where two are needed, the process is currently even more difficult as both witnesses must be present at the same time.

Unless a will complies with these fundamental principles, it cannot be used for probate and is open to challenges from disappointed relatives, or anyone else who feels they should have been in line fora windfall.

>The simplest option would be temporarily drop the English requirement for two independent witnesses.

Discussions are currently taking place to see whether there can be some emergency changes to the current, strict legal requirements.

Unfortunately, the public position of the government, expressed by the Ministry of Justice is, “this is a delicate area of the law and we absolutely must continue to protect the elderly and vulnerable against potential fraud” and “while there are no current plans to change the law, we will consider all options and keep this under review during the Covid-19 pandemic”. 

Frankly, I do not believe that this statement, which could have been lifted directly from an episode of Yes Minister, is good enough when there are many thousands of people, particularly the elderly, for whom this issue needs to be urgently addressed. 

The simplest option would be to temporarily drop the English requirement for two independent witnesses.

Clearly, safeguarding vulnerable people from being unduly influenced or defrauded is vitally important, nonetheless it is as equally important in Scotland, and I am not aware of any significant concerns about fraud north of the border.

A temporary change to one independent witness is wholly justified in the current circumstances and should be brought into effect without delay.

Such a change would deliver a practical solution to a problem created by this ongoing lockdown and would make life far easier for all those currently looking for a way to make their will in today’s challenging times.

Ken Davy is chairman of SimplyBiz Group