In recent weeks, a hot topic of conversation between Private Client lawyers has been that of dealing with the signing and witnessing of Wills whilst still maintaining social distancing. With lockdown easing this may become easier but with the threat of a second wave of Covid 19 and the likelihood that it will be at least several months (if not years) until a vaccine becomes available, lawyers still need to consider keeping themselves and their clients safe. Particularly when taking into consideration the fact that many of those making Wills fall into a ‘vulnerable’ category.
The Law Society have published guidance and practice notes on virtual execution and the use of e-signatures for deeds and documents, as has HM Land Registry, but no such guidance is available for the execution of Wills.
The formalities for signing and witnessing a will in order for it to be valid in England and Wales are set out in s9 of the Wills Act 1837 –
- It must be in writing (although there is an exception to this for those on ‘active military service’, more on this later);
- It must be signed by the testator, or by some other person in his presence and by his direction; and
- It must be witnessed by two independent people, present at the same time and in the presence of the testator.
This legislation is just short of 200 years old and certainly did not envisage the current situation we find ourselves in nor the digital world and technology we have available to us today.
So, what options are available to us?
A number of suggestions have been discussed and the approach will largely depend on the situation the testator finds themselves in and how urgently the execution is required. It should be made clear that none of these options have been tested in court and the only truly reliable way of creating a valid will is to follow the formalities of the Wills Act laid out above.
The most obvious solution would seem to be to have members of the same household act as witnesses. However, it is likely that these same people would be beneficiaries under the will and acting as witnesses would invalidate that gift so it is wise to look outside of close family members and have completely independent witnesses. Where professionals are instructed in the preparation of Wills this would usually be the lawyer and another member of the team.
As lawyers, we are used to meeting with our clients in our offices or at their homes which during lockdown period has simply not been possible, and we need to think outside of the box.
Whilst it is possible to take instructions over Zoom/Teams/Messenger/Skype or other virtual meeting software, it is still not possible for this to be used as a reliable method of execution. There are reports that a Will has been witnessed using such a platform in circumstances where simply no other option was available as the client was seriously ill with Covid-19. Will instructions were obtained through a virtual meeting, the draft sent and approved via email and the signing and witnessing took place via another virtual meeting. However, this has yet to be tested in court so it is not known whether or not this would be held to be a valid will and the intention in this particular case is that a more conventional signing will be dealt with when all parties are in a position to do so. It has been suggested that should this method be required in such urgent situations that both the instructions meeting and the signing meeting should be recorded.
Perhaps a ‘through the window’ process could be adopted. This would require one party outside of the property and the other, likely the vulnerable testator, to remain in the home. The testator signs the will in the window where the witnesses can see. The will is then left on the doorstep, with the witnesses remaining at least 2 metres away. Once the testator is back indoors the witnesses retrieve the will and sign it and leave it back on the threshold for the testator to collect, or posted through the letterbox. Alternatively, employing a similar method but rather than the testator signing the will one of the witnesses does so on their behalf, at the direction of the testator and watched by them through the window and communicating through a telephone conversation.
Maybe it would be possible to dispense with having a Will witnessed altogether. As already mentioned, there is an exception within the Wills Act for what are known as ‘Privileged Wills’. This applies to those who are on active military service. In these circumstances, where a person is in an operational area, or about to be deployed to one, the usual formalities do not need to be adhered to and a Will need not be in writing, let alone signed and witnessed. In this time of national crisis perhaps a relaxing of the formalities may be in order (at least in the short term) so that the use of Privileged Wills can be extended?
Other jurisdictions adopt less formal requirement for the making of a valid will, in some places the need for witnesses has been dispensed with altogether, and this may be a way forward to be considered.
Until such time as formal guidance and/or legislation is available or these methods are tested in court we will not know whether these methods will be acceptable in creating a valid will.
Author Johanna Searle, Legal Trainer, Ochresoft