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Signing Wills and Lasting Powers of Attorney amidst Covid-1925th March 2020 Wills, Trusts & Estate Planning
Jonathan Askin, corporate and commercial partner at JMW, recently spoke about the impact of Covid-19 on signing business documents and whether or not it is possible to sign documents remotely whilst self-isolating. Although physical signatures can be replaced with e-signatures for the signing contracts and deeds (in some circumstances), unfortunately the same does not apply for Wills and Lasting Powers of Attorney.
Wills must be signed in the presence of two witnesses and all three people must be present all the time. It is desirable that witnesses should not be under 18 nor closely related to the testator. A person must also not be a witness if he or she is due to benefit under the Will or they are the spouse/civil partner of a person who is due to benefit.
For Lasting Powers of Attorney, the donor must have their signature witnessed by somebody who is over the age of 18 and who they are not appointing as an attorney.
These rules will of course pose problems for those who have been advised to remain at home on their own due to Covid-19. There are, however, options available for testators and donors who are self-isolating.
Signing Wills Whilst Self-Isolating
The law permits somebody to sign a Will on behalf of a testator provided that the act of signing is “in the testator’s presence and by his direction”. So, the testator can ask somebody else to sign their name on the Will but they must ensure that their direction is clearly and positively communicated to the person signing. This communication can be verbal or non-verbal.
It is also necessary for the person signing to list their name and address on the Will. However, the person signing cannot be counted as one of the witnesses to the Will (and hence three other people, aside from the testator, are needed). The testator must also make it clear to the witnesses that he has requested the other person to sign on his or her behalf.
As mentioned, usually a witness cannot be a beneficiary of the Will. Although the law does not state who the person signing can be, it is undesirable for the person signing the Will on behalf of the testator to be a beneficiary.
An alternative option might be to have the testator signing the Will, but the two witnesses being the other side of a window. Hence they can witness the signature of the document, but not be in close contact with the testator. The Will, once signed by the testator, could be passed through a window or letter box for the witnesses to sign (again with the testator watching).
At JMW, we can draft your Will appropriately to ensure that it complies with the required formalities where you are requesting somebody else to sign your Will on your behalf. We can also provide you and your witnesses with guidance when signing the Will to ensure that it is validly executed.
Signing Lasting Powers of Attorney Whilst Self-Isolating
It is also possible for a Lasting Power of Attorney to be signed by another person at the direction of the donor where the donor cannot sign or make a mark.
If this is to be done, the person signing must sign in the presence of the donor as well as two witnesses (instead of the usual one witness). They must sign in their own name and must not also be a witness.
The witnesses must be over 18 and they cannot be an attorney, however the person acting as “certificate provider” can be a witness. The Office of the Public Guardian have also confirmed that a certificate provider can also sign the Lasting Power of Attorney on behalf of the donor.
Again, it may be easier to sign the documents with the witness watching through a window.
At JMW, we can complete a Lasting Powers of Attorney document for you which will ensure that the formalities are complied with when you require somebody else to sign on your behalf.