By Samantha Downs, Private Client Solicitor
I’m fairly certain that almost everyone knows that for a Will to be valid, you need to have at least two witnesses, and when signing, the testator (the person making the Will) and the witnesses all have to be present and see each other sign. Up to now, this has never really been a problem, but since Covid-19 has raised its ugly head, being socially distant and not entering other people’s homes or seeing your solicitor, means that it has become difficult to always be in each other’s presence. So what is acceptable to ensure that your Will is valid?
It’s all about line of sight. There are a number of cases dating back to 1688, which have developed the line of sight test, culminating in a most remarkable and interesting case, namely Casson v Dade (1781). The lady making the Will, a Miss Honora Jenkins, travelled to her solicitors’ office by horse and carriage. The office was very hot and she suffered from asthma. As a result she felt faint. She retired to her carriage with her Will and the witnesses. She duly signed her Will. Her witnesses then left her carriage and returned to the office where they signed the Will, so, arguably, they did not sign the Will in the presence of Miss Jenkins. However, when the validity of the Will was challenged, Miss Jenkins’ maid gave evidence that, at the moment the witnesses were signing, the carriage horses reared up, causing the carriage to move into line of sight with the office window. She stated that, had Miss Jenkins looked through the window, she could have seen the witnesses sign. As such, the Will was found to be valid.
That principle has a link to how Wills can be witnessed today, in the current, unusual situation. Where a client doesn’t have suitable witnesses within the household, then it may be necessary to witness the signing of the Will through the client’s window, in order to preserve social distancing. So, in the event that you see two people in suits loitering outside people’s windows, peering inside like smartly dressed burglars, it could be that they are witnessing a Will!
At a time when many people are considering making or updating their Wills, our Private Client team at Onions & Davies can advise you on how this can be achieved in a safe and legal manner. If you have any questions, please contact Chris Milne on 01630 652405 or at chris@onionsanddavies.co.uk