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  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.
26th March 2020 at 11:07 am
Thank you for this. Could you post an attestation clause for when the testator asks the drafter to sign on their behalf. I think your article then says the drafter could also be 1 of 2 witnesses, am I correct?
26th March 2020 at 11:21 am
Hi Sian, it’s fine for the drafter to act as one of the witnesses. For clauses, you’ll need to email [email protected] and they’ll be able to help. Thanks!
26th March 2020 at 12:20 pm
In my 30+career I have only had 1 situation where someone needed to sign on behalf of the Testator – about 20 years ago- and I recall that it was the drafter plus 2 witnesses. I will check this out as am pretty sure I have a clause somewhere that covers this.
26th March 2020 at 12:27 pm
Hi Sara, I can assure you that it is fine for the drafter to act as one of the witnesses and also as the person who signs on behalf of the testator. This point was addressed recently by the Law Commission in the same consultation paper referred to in the article. (See 5.23 here: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2017/07/Making-a-will-consultation.pdf)
26th March 2020 at 6:16 pm
That’s really helpful, thanks. Is there any guidance with regards to LPA’s?
27th March 2020 at 1:02 pm
Hi Pete, the advice with LPAs is very much the same as these also require witnesses to be physically present when the donor and attorneys sign. Thankfully the restrictions on who can act as a witness to an LPA are much looser, so donors and attorneys shouldn’t face the same issues with sourcing a witness as they would for their will.
The only requirement for a witness to the donor is that they are over 18, have capacity, and are not an attorney on the LPA. For witnesses for an attorney the requirements are that they are over 18, have capacity, and are not the donor. Attorneys may witness other attorneys signatures.
27th March 2020 at 3:06 pm
Thank you for the very useful information. It is a relief to know we would qualify as key workers too. Many thanks!
27th March 2020 at 3:48 pm
This is advice I have been offering:-
“One suggestion I can make is to sign the Will in yours or a neighbour’s garden. If you place the Will on a table and each keep 2 metres away from one another, you could then sign the Will with the witnesses observing from a safe distance. The witnesses could then themselves individually approach the table to sign the Will while you yourself keep your distance. If you each use your own pens this will also reduce the risk of the virus being passed between you. This is of course only a suggestion and you may have ideas of your own. The important thing is to keep safe and comply with the Governments current guidance and regulations on social distancing.”
27th March 2020 at 11:18 pm
I used this very example today
27th March 2020 at 5:02 pm
I supervised the signing of a Will this afternoon in a client’s front garden. I delivered the Wills and waited in the car whilst the clients picked them up in surgical gloves from the front door step and read them through on the basis they could phone me if there were any queries. Then they came out of the house and signed the Wills in their gloves with their own pens on the bonnet of their car after we (my husband as the other witness) positioned ourselves in their garden so we had a clear line of sight at a distance of 2 metres and then they retreated and we collected the Wills and witnessed and dated them. The strangest Will signing I have experienced and fine to do in good weather with physically able clients but there are lots of situations where this would not work.
30th March 2020 at 9:33 am
Could you please confirm if there is any specific wording required in the attestation clause to enable the drafter to sign on behalf of the Testator and also act as a witness or do you wish me to make this request via [email protected]?
1st April 2020 at 11:59 am
Hi Mike, your best bet would be the technical team, yes please.