Coronavirus (Covid-19) and the Attestation of Wills

Due to the current coronavirus epidemic many industries are finding themselves facing practical difficulties when it comes to carrying on their business; among them are Will Writers and Estate Planners. As you’re probably already aware, even the SWW has taken the Government’s guidance and has switched to working remotely for the time being though we are still here and still supporting our Members to the best of our ability.

A unique challenge that Will Writers are currently facing is how to continue taking instructions for wills. With the current restrictions on travel and social distancing, and for some people self-isolation, in force we are having to rapidly change how we take instructions for wills. We discussed this issue last week and gave some recommendations to Members on how to work remotely. If you haven’t read the article already we recommend starting there. You can find the article here: https://www.willwriters.com/blog/remote-instructions/

What about signing the will?

It’s all well and good taking instructions remotely but this is just the first step. The next hurdle is getting the will properly signed, and unfortunately this hurdle is much harder to overcome. We have been overwhelmed with queries these past few days asking if it is sufficient to witness a testator signing their will via Skype or other means of video calling. We’re sad to say that the answer to this is no.

To be valid a will must meet all of the requirements of section 9 of the Wills Act 1837. Among those requirements is a need for the testator to sign or acknowledge his signature in the presence of at least two witnesses, together at the same time. It is also valid for someone else to sign on the testator’s behalf, but again this must be done not just at the testator’s direction but in his presence and in the presence of the witnesses.

The problem word is ‘presence’. The Law Commission looked at this issue in its consultation paper ‘Making a Will’ in 2017 and confirmed that, as the law currently stands, witnesses must be physically present. To quote them:

“Whether the parties are in each other’s presence is currently decided with reference to whether they are in the same room and whether there is a line of sight. That rule would be difficult to apply where a witness is said to have had a line of sight to the testator via an online videoconference (there has been no such case). However, it is unlikely that the current law governing witnessing extends to witnessing via videoconferencing because “presence” has been held to involve physical presence (In the goods of Chalcraft [1948] P 222.).”

It’s possible that at some point in the future we will see the law adapt to allow for remote witnessing and e-signatures on wills. But at this moment in time we can only act according to the current established law.

What can we do then?

Meeting with a client and gathering the testator and another witness together in the same room to sign the will is practically difficult right now if the testator is self-isolating.

One option is to delay the signing of the will until a later date when restrictions are lifted and we are no longer having to practice social distancing. We feel this is risky. We have no idea when this epidemic will end so this would mean leaving vulnerable people without a valid will in place for potentially the next few months.

Other practitioners have been opting to rely on some very old case law, Casson v Dade (1781). In this case it was established that a will was valid where the witnessing had taken place through a window, so while the testator and her witnesses were not actually in the same room. We’ve seen many reports of solicitors taking this approach by taking the will to the client’s home and doing one of the following:

• Passing the will through the letter box for the testator to sign in front of the window while the witnesses watch from outside. Then having the testator pass the will back through the letterbox for the witnesses to sign while the testator watches through the window.
• Avoiding passing the document to the testator at all. Reading over the terms of the will to the testator through the window and having the testator ask the drafter to sign the will on their behalf. The drafter and other witness then also sign as witnesses, all while the testator looks on through the window.

This is even an approach that the Irish Law Society is recommending. Their English equivalent has not addressed this yet, but bear in mind that the attestation requirements for Irish wills mirror our own.

Alternatively, you can bind the wills and post them to the clients with very clear instructions on what they must do to sign them properly. This will mean they will need to make arrangements themselves for suitable witnesses, while still trying to comply with the current restrictions and keeping themselves safe.

The final question then, is ‘Can I even leave the house to do this?’. The government have been clear that travel to work if it cannot be done from home is acceptable, so a Will Writer should have no issue with travelling to have a will executed.  The list of ‘key workers’ in relation to the justice and legal systems was clarified by the Law Society as including ‘solicitors acting in relation to the preparation and execution of wills’. While it has not been possible to obtain any clarity on whether this definition extends to Will Writers in general, we believe that it does as the provision of wills is clearly an essential service, and any guidance issued by the Law Society would of course only be geared towards solicitors anyway.

Ultimately, if you are out there meeting with clients you need to consider at all times the risk to the client and the risk to yourself and what you can do to practice appropriate social distancing to mitigate this risk.