Signing Wills at Alert Level 4: the low-down on lockdown
While the country remains at COVID-19 Alert Level 4, you may be considering the need for a new will. If you are considering making a will or updating your existing will, you will need to consider whether your will is able to be validly executed while in "lockdown".
Validity Requirements
There are certain requirements that must be met in order for a will to be valid, set out in the Wills Act 2007 (Act). These requirements include the requirement that the will must be in writing and the will-maker's signature must be witnessed by two adult witnesses (who will not benefit under your will), who must be present when the will is signed.
Given the ongoing uncertainty around the COVID-19 situation, those of you considering the status of your wills might be concerned about how a will can be validly executed if you do not have two independent witnesses within your "bubble". The short answer is that unless you are an essential services worker who works with at least two other people who are willing and able to witness your will, or your bubble does include two independent adults, you will not be able to have your will validly executed while the country remains at Alert Level 4.
High Court can validate if necessary
The good news is that section 14 of the Act permits the High Court (Court) to declare wills that do not meet the validity requirements set out in the Act to be valid, provided the Court is satisfied that the document expresses the deceased person's testamentary intentions. This is not the ideal way to ensure a valid will but does provide a mechanism for creating wills.
The Court has in a number of decisions resolved that the purpose of section 14 is to rectify non-compliance, rather than validating the wholesale absence of a will - if it is clear to the Court that a valid will was intended to be made, but was not validly executed, then the Court is likely to validate it. However, what is presented as the will must be in writing! The Court has explicitly stated in a number of cases that oral wills do not suffice.
Circumstances in which the Court has validated an informal amendment to a will include where a letter was sent instructing a firm of solicitors to update a will and the document was prepared, however the firm was subsequently unable to get in touch with the will-maker to have the document validly executed. The Court, having regard to all evidence available, concluded that the will-maker did not realise anything further was required for the will to be valid, and approved the amendment.
What happens if I die without a will?
If you have not prepared a valid will (or a will the Court is able to validate), then you are considered "intestate". The "default" rules that apply on intestacy take effect and are set out in the Administration Act 1969. How the intestacy rules apply depends on your personal circumstances at the date of your death, such as whether you have children, a spouse or partner, still living parents, or other relatives, and assets are divided according to a strict formula, regardless of what your intentions may have been. One of the main advantages to having a will is that you are able to leave assets to the people you intend to benefit following your death.
We can help
The advantage to having your solicitor draft your will, even in these challenging times, is we can ensure that as much of the formality requirements that can be met at Alert Level 4 are met. This includes our drafting and sending the draft will to you, followed by you emailing us confirming you approve the contents of the draft will and will sign it as soon as circumstances permit. Your will could then be enforced as an informal will in the unfortunate event it should be required. Once the lockdown has come to an end, we will contact you to arrange the proper execution of your will.
If you would like to discuss making a will or updating your existing will, please contact a member of our Wills & Estates Team.
