Making a will in Scotland during the Coronavirus (COVID-19) lockdown
Following the enforcement of social distancing to tackle the spread of COVID-19, the Law Society of Scotland has introduced new temporary guidance to ensure will making can still take place in Scotland. Angela McCulloch of Brodies LLP explains the changes.
What are the valid will requirements in Scotland?
Before we understand why certain changes are being made to the will making process in Scotland during the Coronavirus (COVID-19) ‘lockdown’, first it’s important to understand the requirements in Scotland for a will to be valid and self-proving. For a will to be valid in Scotland it must be:
- made by someone who is 12 years old or over
- made by someone of sound mind, voluntarily, and without pressure from another person
- made in writing
- signed by the ‘testator’ (the person making the will) on every page
- signed in front of a witness who is not a family member and does not benefit under the will
What changes are being made to the will making process in Scotland?
The Coronavirus (COVID-19) outbreak has meant that the final requirement, to have the signing of the will witnessed, has become challenging. Normally, the witness needs to be physically present alongside the testator and sign the will at the same time as them. This poses a problem as most people are either self-isolating alone or with someone who is a family member or a beneficiary under the will; neither of which can take on the role of witness.
To deal with this issue, the Law Society of Scotland has temporarily amended its guidance on witnessing the signing of a will to allow the lawyer to act as the witness via video conference, so long as they are not appointed as ‘executor’ (the person who sorts out the ‘estate’ (money, property and possessions) of the person who's died) directly or through a trust company.
How will the changes to will witnessing work in Scotland?
The lawyer will need to send the testator their will by post and provide details of the video conference. On the conference, the practitioner should ask the testator to show that there is no one else in the room (to ensure they are not under any undue influence) and that their will is currently unsigned. They should then ask the testator to sign each page and show them that each page has been signed.
As soon as is feasible, the will should then be returned to the practitioner who witnessed the signing and they should sign it and date it with the date that the testator signed the will.
Has Scotland introduced any updated guidance for powers of attorney?
The Law Society of Scotland has also introduced guidance that allows solicitors to certify powers of attorney by video conference and to act as the witness to the granter's signature. This process is very similar to what is needed for witnessing wills.
What are the future implications of the new will witnessing guidelines in Scotland?
The Law Society has advised that these measures are temporary, so it is likely that when restrictions caused by the Coronavirus (COVID-19) are lifted, and meetings can take place more easily, these measures will be removed and the requirement for the witnessing of documents face-to-face will resume. However, only time will tell if, after reflection of the changes we all are having to make, temporary changes will become permanent.
Can you witness a will via video link in England and Wales?
The UK government has announced plans to change the law to allow wills to be witnessed virtually in England and Wales.
While isolating or shielding some people have turned to video link software, such as Zoom or FaceTime, to witness a will. Therefore, the government is legalising the remote witnessing of wills – making it easier for people to record their final wishes during the coronavirus pandemic.
These changes will be made via new legislation in September and reforms will be backdated to 31 January 2020. The changes aim to reassure the public that wills witnessed via video link are legally recognised and the changes will remain in place until 31 January 2022 or ‘as long as deemed necessary’.
About the author
Angela McCulloch is a Partner in Wills Executry at Brodies LLP.
See also
What are the intestacy rules in Scotland?
Find out more
Image: Getty Images
Publication updated: 27 July 2020
Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.