The spike in Will-making since coronavirus (COVID-19) took the world in its grip was inevitable. Making a Will has never have been more important for many. But with home-made Wills, it's easy to take one wrong step in the way it is witnessed, or signed.

The outcome at best, can be to make your intentions hard to follow when the Will comes into effect and at worst, to invalidate the Will entirely.

Some countries, including Australia and the USA, have passed emergency legislation to make it easier for Wills to be made during coronavirus. However, in England and Wales, there are no such changes. We still have legislation, dating from the 19th century (the Wills Act 1837) governing Will-making, when facilities like Skype and Zoom had not been contemplated.

So, signing your Will on a Zoom call, with your witnesses watching from another location does not sit comfortably within the Wills Act 1837, as a legal requirement is that your witnesses should be with you (ie present) when they watch you sign.

Can Someone 'Witness' a Will Through a Window or over a Fence?

It is possible, as long as you fulfil the legal requirements to the letter. These include that your witnesses should maintain an uninterrupted line of sight with you the whole time that you sign the Will. Signing and passing the document over the fence to your neighbour to record they have witnessed your signature, if they have not actually seen you sign the document, does not count and would leave you with an invalid Will. For these reasons, we generally advise that you avoid witnessing your Will like this, if at all possible, to avoid the risk that the validity of the Will may be challenged. The best option, if you can achieve it, is to witness your Will in an outside space with clear visibility whilst observing social distancing.

Another frequent error we see with home-made Wills is choosing the wrong type of witness. How is that possible? The Wills Act prohibits your witnesses from being beneficiaries of your Will. So the people you will be isolating with now are unlikely to be appropriate choices, if you intend to leave them something in your Will. But your neighbours and friends may be anxious about coming close enough to you to act as witnesses. It's a tough conundrum and very important to be clear on what you can and can't do.

Why Hasn't the Wills Act Been Updated?

Outdated as the Wills Act 1837 may be, Wills are strictly legislated to guard against various risks. These include a person making a Will without due consideration to its contents, or at the worst end of the spectrum because a person may be under duress, subtle or strong, to make a Will they would not necessarily otherwise choose to.

Many Will disputes arise when vulnerable or elderly people have been persuaded by an unscrupulous person to make a new Will which favours them over family members or another more natural choice of beneficiary. At the moment, with so many elderly or vulnerable people being unable to see their close ones, the opportunities for people to prey on them has potential only to increase. There are numerous cases setting out the tests which must be passed for a Will to be upheld as valid in such cases.

Lord Templeman's Contested Will

A recent highlight was the fabulously-named Goss-Custard v Templeman case, which was heard in the High Court earlier this year. In a bizarre twist of fate, the late Lord Templeman, who had heard many contested probate cases whilst sitting as a judge and who had established a key legal principle, called the golden rule, (more of that in a moment), made a Will, at the age of 88, which was challenged after his death. One of his sons alleged that Lord Templeman, who had exhibited signs of short-term memory loss towards the end of his life, lacked sufficient mental capacity to make a valid Will.

Ironically, Lord Templeman had given his Will instructions to his solicitors, but they had failed to follow his own golden rule, which recommends that solicitors seek a contemporaneous assessment from a medically qualified professional before making a Will for an elderly person, or one suffering from a serious health complaint. Lord Templeman arguably could be said to have fallen into both camps. Plus more red-flags should probably have waved when Lord Templeman proposed to leave a substantial chunk of his estate (a property called Mellowstone) to his two step-daughters, from his second marriage, rather than to his two sons from his first marriage. Although, on examination by the court, there were reasons why Lord Templeman may well have deliberately chosen to do so, not least that Mellowstone was his second wife's property before they married.

At trial, the parties were forced to rely on post-event evidence obtained from experts who relied upon medical records, rather than the more desirable contemporaneous medical examination of Lord Templeman whilst he was still alive, to decide whether Lord Templeman had capacity to make his Will at that specific time or not.

As in all cases like these, many factors are taken into account in assessing such challenges, aside from whether the golden rule has been followed or not, and the Judge in conclusion, ruled that Lord Templeman did in fact have capacity to make his Will. However, in a final ironic twist, it is notable that significant costs for both parties may well have been saved if the golden rule had been followed, which Lord Templeman would no doubt have desired whatever his own preferred outcome of the case may have been.

How Can I Reduce the Risks of Challenged or Invalid Wills?

Will challenges can be brought on several grounds, particularly where different branches of the family tree may have differences of opinion about who should inherit from their parent or relative, and non-disputed Wills can be invalidated unintentionally by the simplest of errors.

So there is great value in reviewing Will provisions carefully, even where they may seem simple and in taking care to follow the strict rules for signing Wills and seeking professional advice on this.

Read more:

How to Avoid Making an Invalid Will During the Coronavirus Pandemic - Lexology