Many of us are all now adapting to the Government's guidance of working from home as much as possible. A unique challenge you may have is how to continue taking instructions for Wills within the parameters of social distancing and self-isolation. I’m sure you will have read our previous guidance about this here.
But taking instructions is only the first part, we also need to consider the next stage of ensuring the documents are signed and witnessed; the attestation.
The Society of Will Writers have reported that they have received a number of enquiries about whether it is sufficient to witness a testator signing their Will via Skype or other means of video calling. The answer at the moment appears to be no. To be valid a Will must meet all 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.).”
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.
The SWW reports that 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.
- Or in a similar way to supermarket delivery drivers, you can simply knock on the client door, leave the documents at the door and step 2m away so the client can sign at the door, with witnesses standing back in the front garden.
Signing the document is possible, just ensure the witnesses are local to where the client lives and that social distancing rules are applied, together with hand washing once documents are handled.
The IPW have advised that Wills and other documents can be sent to your clients by post but do remember that the tests for mental capacity and undue influence that you have applied at the Will instruction stage also apply at the attestation stage. The IPW Code of Practice states that when supervised attestation does not take place clients must be:
- Advised in writing of the importance of correctly attesting such documents and the consequences of incorrect attestation
- Provided with written instructions of the correct attestation procedure
- Provided with a service by post or email to check that the documents appear to have been attested correctly
The BTWC Remote Attestation Form and signing pack that we issue as standard with all documents complies with these requirements so it is more important than ever to ensure you pass this on to your clients.
Do remember we are here to support you and your clients through these difficult times so do keep in touch. We may call or email you at odd times of day as we adapt to this new situation ourselves but be assured, we are here for you.