John: Not the time for a test case
A law firm in Wiltshire is offering a ‘Wills through a window’ service as law firms look for ways to execute wills validly amidst a spike in demand due to the coronavirus pandemic.
Solicitors acting in connection with the execution of wills are one of the categories of lawyer deemed a keyworker by the government, and there have been anecdotal reports of a surge in instructions.
Under the Wills Act 1837, it is not permitted to witness a will via video messaging as a witness must be physically present, although it is possible to supervise the signing of a will using electronic means where the lawyer is not acting as a witness to the will.
Wiltshire firm Goughs has told clients that its lawyers “will come to you whilst conducting the meeting and witnessing if necessary at a safe distance and through a window” (see video below).
Emma Taylor, head of private client, said: “Our number one priority is the health and safety of our clients and staff and ‘Wills through a Window’ is already making a positive impact on our clients who can have peace of mind they have a valid will in place but also that they are not putting themselves at risk doing so.”
However, guidance issued by the Society of Trust and Estate Practitioners (STEP) notes that “some advice suggests that the virus could survive on paper for up to 12 hours, so that it could be transferred from person to person just by handling the draft will”.
Jane Sutherland, a private client partner at East Midlands firm Nelsons, has suggested to clients that they could call neighbours or friends and “arrange a meeting in your garden, driveway or street” to witness a will.
“Everyone should use their own pens, wear gloves and ensure they stand two metres apart.
“Place the document on a flat surface, such as a table or car bonnet, with each person stepping forward separately to sign the will. Once complete, the will should be placed into an envelope before gloves are removed.”
STEP and the Law Society have approached the Ministry of Justice to lobby for a relaxation in the legislative requirements during the crisis and the society said it was also talking to the Solicitors Regulation Authority (SRA) about the regulatory barriers and giving solicitors clearer guidance than it has to date.
The Law Society’s current guidance says: “We suggest members ask clients to video record the signing of the will if possible and keep good file notes on how instructions came in and how the will was signed. You may also want to think about discussing re-signing the will with clients once social distancing requirements are lifted, where this is appropriate.”
Chancery barrister Charlotte John, who practises from London chambers Hardwicke, suggested that one way to reform the law would be to copy another provision in the Wills Act (section 11), which allows members of the armed services to make informal wills, either in writing or orally, and without the need for a witness to be present – although the making of the will must be evidenced in some way.
On her blog, Ms John said that, given the emphasis on visual presence and the line of authority indicating that a line of sight through glass will suffice, it was “conceivable” that the courts may hold that remote witnessing via video-conferencing technology was sufficient to comply with the Act.
But she stressed there was “no authority at all” on this: “Whilst it would be fascinating to run a test case on the point, I cannot recommend proceeding this way.
“Unless and until we have legislation expressly permitting the use of such technology, the advice must be to proceed on the basis that the physical presence of the testator and the witnesses is required.”
Ms John added that remote witnessing introduced evidential difficulties concerning the question of whether or not the document signed by the testator was the same document signed by the witnesses.
One possibility is being on opposing sides of a glass partition in order to observe the act of signing and passing the document through the letter box, but Ms John recommended additional precautions in this situation to ensure that all parties were satisfied that the document being signed on each side of the partition is the same one: “Holding the document up to the window before signing and recording the proceeding by some method on each side would be a good idea.”
The barrister said her preference would be for execution to take place in an open area whilst observing the recommended distance of 2m.
“The crucial thing is that all parties are present whilst the act of signing and attesting the Will takes place and have an uninterrupted line of sight.
“Precautions such as each party supplying their own pen should be observed. It is presently unclear how long the virus can survive on materials such as paper. Placing the signed Will in a sealed bag and leaving it in an undisturbed place may be a sensible precaution.”
#wills through a window in action! To find out how we’ve adapted our working practices to continuing servicing our clients, whilst keeping our distance due to #COVID19, tune into @itvwestcountry this evening. #news #law #wheretheresawilltheresaway pic.twitter.com/uUarrAAtu6
— Goughs Solicitors (@goughs_lawyers) March 27, 2020
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