Category Archives: family

How to witness a will in lockdown

One of the products of the Coronavirus lockdown is in relation to the witnessing of wills.

The problem

It has always been the case that the person making the will (the testator) has to have two witnesses present at the time that the will is signed. The sequence is that the testator assembles two people who will act as his witnesses. They have to be adult persons and not a relative. Witnesses have to watch the testator signing the will. Each witness then needs to sign the will in the presence of the other witness and the testator.

It is going to be possible from the 1st September for a will to be witnessed electronically. Albeit that the legislation only comes into force on the 1st September, the regulations however are backdated to the 31st January 2020. The regulations will only continue for a period of two years, that is until the 31st January 2022. If there have been no further changes then one has to revert to the position of witnesses being actually present.

The solution

The starting point is to set up a video conference with the two witnesses. The testator signs the will whilst the two witnesses are there. The will is then posted to one of the witnesses. That witness signs it during a further video conference. The document is then sent to a second witness. There then has to be another video conference, again involving all three people when the second witness can sign. Since this process can take a few days it is possible that the testator can become incapacitated or might die before the witnesses process has been completed. In that event, the will would not be valid.

For advice and help with drafting or witnessing a will contact richard.manning@cohencramer.co.uk 

 

New Divorce Legislation

No-Fault Divorce

The Government has announced that they are introducing new legislation to allow a divorce decree to be pronounced without allegations being made.

The bill is intended to be progressed quickly without being bogged down in the House of Commons which has a very full parliamentary session because of Brexit.

What is proposed is that there will be filed with the Court a statement that the marriage has irretrievably broken down.

Whereas at present it is possible to defend the divorce proceedings either on the basis that the marriage has not broken down or that the facts are not true that the ability to contest the tradition for divorce will be removed.

It is envisaged that in 20 weeks from the start of the proceedings the Court will be able to make a Conditional Order.

No need for blame

The legislators say that in taking away the need to “blame” it should take away needless antagonism. This should allow families to get on with their lives.

Some will of course say that this new procedure undermines the institution of marriage.  Most family lawyers believe that the proposed legislation achieves a good compromise.

Scope and impact

The legislation also will cover civil partnerships with parallel legislation.

The legislation when approved is not going to affect existing areas of matrimonial law, particularly issues of financial provision proceedings consequent upon the breakdown of the marriage.

Children and their needs will remain a paramount consideration in matrimonial financial provision proceedings and the separate ability for the Court to regulate children matters will also be preserved.

 

Richard B Manning – February 2020