Lockdown Wills – is yours valid?

During the uncertainty of the COVID-19 Lockdown, many individuals chose to use this time to get their affairs in order. Unfortunately, this has led to legal issues surrounding the validity of these Wills, specifically, the signing and witnessing process.

A recent article published in Today’s Wills & Probate explored a contested probate case where a Will was voided because the proper signing procedures were not followed.

The case of Peter Coady v. Gerard Coady centred on the validity of a Will drafted during the COVID-19 lockdown in April 2020, by Kathleen Bernadette Coady, which appointed her son Gerard as sole executor and residuary beneficiary. This revoked a 2017 Will that had named Peter, her other son, as executor and residuary beneficiary and also included specific legacies to other family members. Following Kathleen’s death in November 2022, probate was granted in December 2022 on the 2020 Will, but Peter challenged it, arguing that the Will had not been properly signed or witnessed.

The case highlights the strict formalities for Will execution, even under unusual circumstances such as lockdown. In this article, we will take you through the legal requirements for a Will, how they differed during the COVID-19 pandemic, and what you can do to ensure your Will is legally valid.

At the trial of Peter Coady v. Gerard Coady, the witnesses testified that they were asked by Gerard to observe the signing during the COVID-19 lockdown. The witness stated that they sat in the garden whilst Kathleen was inside the house, and there was around 16-20 feet between them. They explained that Kathleen appeared frail and unresponsive. They advised that they could not see Kathleen sign the will and that she could not see them when they signed. They added that they felt the whole process was rushed and that they were there for less than 5 minutes. Gerard insisted the signing followed the solicitor’s instructions and that his mother understood and participated. He denied any irregularities.

The court concluded that Kathleen did not sign or acknowledge her Will in the witnesses’ presence and could not see them when they signed, and therefore the statutory requirement of simultaneous presence was not met. The court also noted that the Will itself took 6 minutes to read. The 2020 Will was ruled invalid, and the Will dated 2017 was reinstated.

In order for a Will to take legal effect, there are strict formalities and processes that must be followed.

A Will must be:

• Signed by the Testator (the person making the will)
• Signed by two witnesses
• The witnesses must be present at the same time as the testator’s signing

To ensure that the Will is witnessed correctly, it’s imperative that both the Testator and the two witnesses are in each other’s presence.
So how should this have been done during lockdown?

For Wills to still be made during the lockdown, the government implemented temporary measures and adaptations, allowing Wills to be witnessed and signed remotely. However, in order to accommodate the usual legal requirements, specific processes were put in place that not all remote witnessing methods could follow.

The main change was that witnesses and testators no longer needed to be in the same room (in line with social distancing rules); however, both parties must be able to see and hear each other clearly, and signing must take place on the same day in real time. If these conditions were not met, the Will can be deemed invalid, meaning the distribution of your estate and assets may not be carried out as you intended.

If you had your Will drawn up or amended during the COVID-19 pandemic, it is vital that you check if it was signed and witnessed correctly.

1. How was it signed? – Did the witnesses sign the Will in your presence? Were they able to see you sign it?
2. Legal Advice – Consult with a Wills and Probate Solicitor who can establish its validity and advise if any amendments are required.
3. Update or Re-write Your Will – To ensure your Will is legally valid, you may want to consider re-writing or updating it
4. Future updates – Going forward, make sure that any Will you sign is witnessed properly, and the requirements set out earlier in this article are followed

If you made a Will during lockdown and are yet to review it, it’s important to understand the potential pitfalls and legal consequences, and seeking expert legal advice is crucial.

The rise in lockdown Wills has led to a number of legal challenges regarding the signing and witnessing process. It’s crucial to ensure that any Will you make adheres to the required legal formalities. If your Will has been signed incorrectly, or if you’re unsure about its validity under the law, contact the experts at Backhouse who are here to help.

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