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 Boyce Kelly, we are here to help you through this unprecedented time. You can contact us 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. However, these restrictions are making it more challenging to prepare for the future, with many left wondering how they can write a new Will or revise their existing Will during this time.
As it stands, a Will can only be made in writing and by a person (the testator) who is aged 18 or over. Under normal circumstances, a new or amended Will in Ireland must be witnessed and is only deemed valid when it is:
- Signed in the presence of two witnesses over the age of 18
- Signed by the two witnesses, neither of whom is a beneficiary, in the presence of the testator and each other.
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 Ireland by clicking here.
Social distancing – can I still make a Will?
Under the current measures of social distancing and staying at home, there is confusion over what this means for having your Will witnessed. The law states a witness to a Will must be physically present, i.e. not through means such as video conferencing.
During this pandemic, this may still be possible if you live with someone who does not stand to benefit from your Will, e.g. a friend or roommate. However, for those whose current household consists of only beneficiaries, the situation becomes more problematic as using them as a witness will invalidate their entitlement in the Will. Similarly, neighbours who do not stand to benefit from your Will, can act as witnesses as long as they can both see you sign it while maintaining recommended social distancing. As solicitors are deemed to be an ‘essential service’ where you don’t have independent witnesses, such as housemates or neighbours your solicitor and a staff member can travel to your house to witness your will.
Recommendations of the Law Society of Ireland
Current laws around the signing and witnessing of Wills have been in place since 1965 under the Succession Act. To date, there have been no legislative changes to help with the current crisis, albeit the Law Society have issued guidelines and recommendations. These include:
- For clients who cannot attend our office:
- You and your solicitor can have a video conference on whatsapp, facetime, zoom or skype so that your instructions can be taken and the will is drawn up. The draft will is then sent to you for review via email or post and you and your solicitor can have further follow ups until the Will is finalised.
- Your solicitor will then instruct you as to where and how the will can be properly executed, examples as recommended by the Law Society as follows.
- Witnesses can stand outside your house and watch you sign the Will through a closed window. Witnesses then stand back at the recommended distance while the will is placed outside to be witnessed.
- You sit in your car and sign your Will while your witnesses stand outside and watch you sign through the closed car window and then witnesses stand back at the recommended distance while the will is placed outside to be witnessed.
- Ensure witnesses remain the recommended distance of two metres apart from the testator and from each other at the time of each signing. Each must watch when each signs.
- You as testator should bring your own pen and wear gloves
- Your witnesses should bring own pens and wear gloves
- The will must be carefully laced in an envelope and left aside for 72 hours and then stored safely, preferable in a fireproof safe.
- An affidavit of attesting witness may be sought by the Probate Office in the future. Therefore it is advisable to have one drawn up and signed by each of your witnesses at the time of execution of your Will where possible. Your solicitor can draw one up for you.
2. As an ‘essential service’, we are permitted to have our clients attend the office, as long as HSE guidelines can be adhered to. If you are permitted to attend your solicitor’s office:
- Again, your solicitor will take your instructions over whatsapp, facetime, zoom or skype and drawn up your will in accordance with your instructions. Your draft Will will be sent to you by email or post for review and finalising.
- A brief appointment will be made for you to attend the office, solely for the purpose of signing the Will, and you will be asked to bring your own pen.
- On attending, you will be asked to sanitise your hands at the sanitising station at the entrance and to put on disposable gloves and take a new pen as provided and to stand where asked.
- The Will will have already been placed on a sanitised surface two metres away.
- The solicitor and other witness will stand 2 metres away from you and each other, both wearing gloves and using new pens.
- You will be asked to sign and date your will in the correct place.
- Each witness will then sign the will in your presence and the presence of each other maintaining the 2-metre distance from you and each other at all times.
- It will then be confirmed to you that the Will has been validly executed and you will leave the office, disposing of your pen, removing the gloves and sanitising your hands at the sanitising station.
- The Will will then be put to one side for 72 hours and subsequently then placed in our Wills Safe for safe keeping.
If a Will is created and not properly executed, you could be opening the door for it to be challenged for undue influence and whether the testator was of sound mind. It is therefore crucial that we move forward with extreme caution, following legal requirements as closely as we can to ensure that any written or revised Wills during this period are valid in all senses.
Having the assistance of a qualified Wills solicitor can ensure your Will is not questioned for its authenticity in the future. While these current circumstances are rare, our team will aim to ease the strain by guiding you through the proper avenues to creating a legally valid Will.
Contact our Wills lawyers in Donegal today
The COVID-19 pandemic has highlighted the importance of ensuring your Will and all estate planning is prepared for unexpected circumstances. While the doors of our office remain closed to the public, we have been deemed to be an ‘essential service’, and we are working behind closed doors to ensure HE guidelines on social distancing are adhered to. Our lawyers at Boyce Kelly are fully available to speak with you today. Do not delay, get in touch with our Wills/Estate Planning team today and we will help ease the stress this crisis has caused.
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 26th April 2020 and is subject to change as official guidance is adapted to reflect the implications of the virus.