Signing A Will During A Lockdown

by Stewart Stretton-Hill

Lately, I've noticed a huge increase in clients wanting wills, probably due to global anxiety and wanting to plan ahead as much as possible. However, with social distancing and isolation restrictions in effect, the simple legal task of signing a will has become a challenge.

The legal requirements of will signing date back to the Wills Act 1837. Those requirements have remained constant for nearly 200 years.

To be valid, a will:

1. Must be in writing
2. Signed by the testator
3. In the presence of two or more witnesses who are present at the same time; and
4. Each witness must sign in the presence of the testator

What is clear from various cases over the years examining these principles is that physical presence of all parties is required.

These are unprecedented times but these requirements remain the same and to create a valid will the testator must comply. The big question now is how does social distancing impact these obligations?

The first two requirements are cut and dry:

1. In writing – A will can be written by any method used to record words (writing, typing, printing etc.) so it is perfectly acceptable for a will to be typed electronically and emailed to an individual.
2. Signed by the testator – A testator can easily print off and sign a copy of the will but what if they do not have access to a printer and are extremely vulnerable, even avoiding the post. Would an electronic signature suffice?

Unfortunately, no. Wills are expressly excluded from the Law Commission report on electronic execution of documents, which notes that an electronic signature is capable of being used on some documents. This is because the Law Commission launched a consultation paper specifically in relation to wills in 2017, which concluded electronic signatures should not be able to fulfill the requirements. Despite discussions between the Law Society and the Ministry of Justice there is no indication at this stage that the government will enact emergency legislation to enable wills to be executed electronically.

The last two requirements of the Wills Act 1837 are a bit muddier.

While case law has shown that it is not actually necessary for the testator to see the witnesses to sign the will, they must be able to do so if they want to. This means that witnesses do not need to be in the same room as the testator, provided the testator could actually see them sign the document. However, witnessing by video conference will not suffice as this does not satisfy the need for the witnesses to be physically present.

Some practitioners have, therefore, suggested witnesses attend at the window of an isolated testator's house. The will could be passed through the window with all individuals retaining their own pens and wearing gloves to minimise the risk of infection.

While cumbersome, this is a possible solution to at least comply with the formal requirements. It does, however, raise other issues such that it may not be possible for the witnesses to determine if the testator is being pressured to sign the document by an individual who is out of sight. Additionally can everyone be satisfied that the document signed by each party is, indeed the same document? To that end the Law Society recommends that individuals are asked to video record the signing of the will .

Finally and most importantly it also introduces risk of exposure to the virus for the isolated individual who is more likely to be elderly or in ill health.

It is not appropriate for practitioners to advise on the extent to which an isolated individual should place themselves at risk. At present, the most that is possible is to advise of the requirements to make a valid will and that the individual adheres to the current government guidance on social distancing.

There does not appear to be any emergency legislation forthcoming to alter the formality requirements, and with parliament shut down until at least 21 April no changes will be coming soon. Practitioners, therefore, need to do all they can to ensure that testators are fully aware of the requirements and that they must comply with them while, as far as possible not risking their own safety.

It is vital everyone stays safe during the lockdown, even if they do need to go through the formalities of signing a will, for the foreseeable future.

Stewart Stretton-Hill is a senior associate with Irwin Mitchell LLP. He qualified as a personal injury specialist in 2000 and acted on high value clinical negligence claims for children who sustained brain damage as a result of injury at birth. In 2007 he switched to private client specialising in advising on Court of Protection applications, powers of attorney and matters affecting elderly and vulnerable clients. Stewart is a member of STEP, Solicitors for the Elderly, and the Law Society Probate Section and is part of the firm's internal Later Life team of specialist advisors.

The views expressed in this article are that of this author and do not necessarily reflect the views and opinions of Voyant.