In English law, to make a valid will, a testator must have their signature to it witnessed by two adult independent witnesses. The current social distancing measures together with self-isolation to protect the particularly elderly and vulnerable, therefore present a challenge for private client practitioners: how do we ensure that wills are valid when we can’t stand within 2 metres of one another?
A will must be executed in accordance with Section 9 of the Wills Act 1837 which provides that no will is valid unless:
- It is in writing, and signed by the testator, or by some other person in his presence and by his direction.
- It appears that the testator intended by his signature to give effect to the will.
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the time.
- Each witness either:
- attests and signs the will; or
- acknowledges his signature, in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.
The crux of the issue is the meaning of ‘presence’. There has been a lot of speculation in the legal press as to whether wills can be signed and witnessed remotely i.e. through Skype or video conferencing. The general consensus appears to be ‘no’ given these strict S9 requirements. The Law Society and the Ministry of Justice are presently discussing relaxing the formal requirements, but, until we receive further guidance or legislative reform how do we ensure the validity of wills in the face of increasing will instructions at the present time adding to pressure for private client practitioners.
How does existing case law help us?
In the case of Brown v Skirrow , the testatrix executed her will in a hectic shop. One witness saw her sign the will. However, the other witness was not immediately nearby, and was engaged in a conversation with another customer, when it was signed. They then signed the will afterwards to witness the document because the testatrix had asked him to. The judge held it was not validly executed. It was held that the witnesses must have a clear line of sight and presence must mean ‘visual presence’. It did not matter that the testatrix had acknowledged her signature to second witness, since that acknowledgment needed to take place in the presence of both witnesses before they each attested it.
In Casson v Dade (1781) a maid was in a carriage and witnessed a will through a window when a horse pulling the carriage reared up, offering her a line of sight of the moment of signature. This case is an example of where the circumstances were sufficient to meet the witnessing requirements. Casson v. Dade was also applied by Senior Judge Lush in Re Clarke in 2011 when a lasting power of attorney was held to have been validly executed where the donor was in one room and the witnesses in another, separated by a glass door.
We are therefore confident that witnessing through windows will be sufficient to meet the S9 requirements or all parties involved being in an open area whilst observing the recommended social distancing.
In circumstances where wills cannot be properly witnessed at all for whatever reason, then other options for testators include possibly making lifetime or donatio mortis causa (death bed) gifts; preparing a letter of wishes which whilst not legally binding might be expected to be followed by the family after death and/or risking the remote witnessing of a will via technology.
For elderly and vulnerable testators, the best advice is for them to execute a will or amend their will however best can be achieved without a risk to health as it is better to have a will and for it to be up to date than not. If this means a new will or codicil is executed in less than ideal circumstances and the requirements of S9 are being somewhat stretched, particularly if a contentious probate dispute is anticipated, then best practice is to prepare a short statement from the witness (almost akin to an affidavit of due execution) to accompany the signing so that the circumstances are outlined and, if possible, repeat the process to follow a more traditional method when we return to normal. This will then help to protect the validity in the event of a challenge after death.
Best practice for solicitors preparing wills in retaining a full file, with detailed attendance notes, letters of wishes detailing testators’ reasons for the exclusion of persons who might otherwise be expecting to benefit and following the so-called ‘Golden Rule’ to obtain a capacity assessment if there are any concerns as to capacity remain of paramount importance.
It has been said we are living in unprecedented times and when in unchartered waters, it is fair to say we can never know the best course. The Wills Act is a historical piece of legislation in any event and given societal changes and modern technological advances this uncertainty could actually be helpful to act as catalyst for a welcome review of the law.