When I joined the wills, trusts & estates team as a newly qualified solicitor in September 2020, we were all working from home, wearing face coverings and socially distancing from colleagues and clients. There is no doubt that the Covid-19 pandemic has changed the way that we work and interact with our clients. In particular, the team has had to change how we take will instructions and execute wills in response to social distancing, shielding and self-isolation.
Executing a will – what are the legal requirements?
Unlike some other documents, wills cannot be signed electronically. To be valid, the will must be signed in wet ink by the testator (or their signature acknowledged) or by another person in the testator’s presence under their direction. The will must be signed in the “presence” of two independent adult witnesses who attest and sign the will or acknowledge their signatures.
Who can witness a will?
Although a beneficiary of the will (or their spouse) can witness the testator’s signature, doing so would mean that the gift to the beneficiary would fail. In the majority of cases, this rules out members of the testator’s household. The witnesses should not have an interest in the will or be connected to anyone with an interest in the will. Neighbours, colleagues or the instructed solicitor make good witnesses.
How, then, can a testator validly execute a will if we are all required to stay at home?
In usual circumstances, there would be little concern about how to witness a client’s will. Two members of the team would attend the client at our offices or their home to execute the will, whilst all sitting around the same table.
However, in order to minimise unnecessary travel during the pandemic, the testator should consider whether they have neighbours or colleagues who can witness the will without the need for additional travel. Of course, in some cases, it will still be necessary for a solicitor to witness the will; for example, if the testator lives in a remote area or does not have two suitable witnesses.
When considering how to witness the will, it is important to note that witnesses are only required to see the testator signing their will (or the signature acknowledged) with a “clear line of sight” (Brown v Skirrow (1902)).
Provided that there is a space large enough, for example, in a garden, the testator can safely sign the will whilst still adhering to the two-metre rule. Once the testator has signed the will, they can place it on the ground or on a piece of furniture and move two metres away. Each witness can then come forward in turn to sign as witnesses using their own pen.
There are some circumstances when the testator cannot get to a place with sufficient room – if, for instance they have limited mobility or are in care or hospital. In these circumstances, the testator can rely on a case from the 18th century (Casson v Dade) where a will was validly executed and witnessed through a carriage window. Witnesses can therefore stay outside the testator’s building and witness the will through a clear window or door.
In response to these complications, the UK government temporarily extended the definition of “presence” in the Wills Act 1837 to include virtual presence (“video conferencing or other visual transmission”). The witnesses still need “clear line of sight” of the testator signing the will on the video call and should also sign the will as soon as possible, preferably within 24 hours, in the presence of the testator (via video call or otherwise). These provisions apply retrospectively to wills made on or after 31 January 2020 and will remain in place until 31 January 2022. The government have made it clear that video witnessing should only be used where absolutely necessary and, wherever possible, wills should still be witnessed in person.
How should we take instructions?
Most of the time, solicitors can assess the testator’s capacity over a video call. If this is the case, it is safest to replace a face to face meeting with a virtual meeting. Consideration still needs to be given to undue influence and, to mitigate the risk of third-party interference, the solicitor should ask the client to show or confirm that they are in the room alone. Most video call providers have a “chat” function which allows clients to type a message silently if they wish to discreetly note someone else’s presence in the room.
Unfortunately, virtual meetings are often not suitable for some vulnerable and elderly clients. Some people find video calls difficult to hear, or they don’t have suitable technology. In these cases, it is often best to attend the client in person and we think carefully about how to do this safely.
It is preferable to meet outside, but if the client has concerns about confidentiality (for example, neighbours hearing discussions) or they are unable to get outside, the meeting room should be well ventilated, and the solicitor and client should be wearing masks, sitting as far apart as possible.
Whilst the social restrictions have created new challenges to executing a will, the Covid-19 pandemic has made making a will more important than ever. Our aim is always to make sure that our clients can make their wills properly and safely, keeping our own team safe at the same time.