In these uncertain times it’s particularly important to consider having an up-to-date will. Having Lasting Powers of Attorney in place may also be reassuring, so that financial and other affairs can be taken care of by a person of your choice, if you are ever unable to deal with them yourself, writes Martin Doe, Wills and Probate solicitor with Newport and Pontypool-based Everett Tomlin Lloyd and Pratt Solicitors.

Current circumstances present certain practical challenges to the making and, in particular, the witnessing of these documents.

The law surrounding the execution of wills is very rigid. It requires that, as well as the person signing the will, there should be two independent witnesses present. This clearly requires contact with other people.

Also, other members of your household may not be suitable as witnesses, as a witness can’t be someone who stands to gain from the will or be married to any such beneficiary otherwise, the beneficiary concerned, will lose out on their inheritance.

Although electronic signatures have become more common for many purposes, at the time of writing this, they are still not acceptable for the execution of wills. Unless the law is changed, it should be assumed that e-signatures or video-witnessing will not be accepted as a valid way to execute a will.

However, the degree of physical proximity between the person signing their will and the witnesses can be limited, provided they are able to see each other signing. A signature can be witnessed through glass, so for example the person making the will could be inside a house or vehicle and the witnesses outside, provided they can see each other clearly through a window, and, of course, there needs to be a safe way to pass the will to the witnesses for signature.

The restrictions on movement and gatherings during the currently-declared ‘emergency period’ may present difficulties in getting three people together to execute a will. However, in Wales, it is only gatherings of more than two people ‘in a public place’ that are legally restricted, not those on private property.

Even where the gathering itself is allowed, travelling to such a gathering could be illegal, as the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 state that ‘during the emergency period, no person may leave the place where they are living without reasonable excuse’ (Regulation 8).

The regulation then provides a list of needs that are ‘included’ as reasonable excuses; while attending on the execution of a will or other legal document is not on the list it’s a question of interpretation whether it’s reasonable to travel to meet, whilst still maintaining social distancing, for this purpose.

There are common-sense precautions that should be taken to minimise risk. It is better for each person to use their own pen, rather than sharing one. Wearing gloves when touching the document, washing-up gloves, for example, would seem like a good idea, and try to maintain a distance of at least two metres apart at all times.

Unlike a will, a person making a Lasting Power of Attorney (LPA) only needs one witness to their signature, but someone, it will often be the witness, also needs to sign to certify that the person making the LPA is not being put under pressure and is well enough to understand the document. This needs to be done by someone that the person making the LPA has chosen, either because they have known the maker of the LPA personally for at least two years, or because they have relevant professional skills and expertise.

After this has been done, the attorney or attorneys appointed will also need to sign the document, but this can be done at a later date and in a different place, so it can be posted to them to sign, although the signatures of the attorneys do need to be witnessed.

The LPA will then need to be registered with the Office of the Public Guardian before it can be used,preferably soon after everyone has signed it, so that it is ready for use if ever needed.

The contents of this article are not intended to be relied on as legal advice but are a summary of the writer’s opinion of the current position in Wales.

Legal advice should be obtained on each person’s specific circumstances.

Many law firms with specialists in this area are still able to offer both advice and help with wills and LPAs via telephone, email and post.