We are currently in the grips of a pandemic, something that has never been seen in our lifetime and with it comes a number of challenges as far as executing documents while observing social distancing rules.
When it comes to the signing of Wills and Lasting Powers of Attorney, it is not possible to use electronic signatures in the same way as you can with other documents. To comply with the strict procedure laid down in the Wills Act, Wills have to be signed with two witnesses present who must be able to clearly see the testator sign the document. However, those who are witnessing the signing of the Will must not be someone who is going to benefit from the Will and they must also not be a spouse or a partner of someone who is going to benefit. It is highly likely that those people in your household who you are currently isolating with will be your family members and mentioned in your Will and so aren’t suitable to act as witnesses. Again, when it comes to Lasting Powers of Attorney, it must be witnessed by someone who is over 18 and someone who is not going to be appointed as attorney.
What are the potential solutions? The law states that someone can sign a Will on behalf of a testator providing the signing is in the testator’s presence and by his direction. This means that a testator who is unable to sign the document can ask someone else to sign their name on the Will but this must be clearly stated in the attestation clause. Another option to consider is to have the testator sign the Will with the two witnesses being on the other side of a window. This will enable them to witness the signature but not be in contact with the individual before the testator passes the Will through the window or the letterbox. They can then sign the Will from outside the window in view of the testator.
There has been case law on this very method of execution and the document was held to be valid. Another alternative is to carry out the execution in the garden so that the witnesses can stand at a safe distance while the testator signs and the testator can then move away from the document, to a safe distance, so that each witness can then sign. As long as the document is in the line of sight of the parties this is perfectly acceptable.
Extra precaution should be taken and each person should use their own pen and ensure they wash their hands before and after touching the document. When it comes to Lasting Power of Attorney, the same methods can be used by each party who needs to sign the document in front of a witness. If you need any additional advice and guidance please speak to us about your specific circumstances.