One of the questions that we have been asked several times in recent days and on which both the Solicitors Regulation Authority (SRA) and Law Society have recently provided guidance, is how law firms can deal with the witnessing of Wills given the impact of Coronavirus and, in particular, whether technology can be used for the virtual witnessing of Wills. This follows on from lawyers seeing a large jump in the number of people contacting them to either make Wills or update an existing Will - and not just the elderly and more vulnerable in society. Unfortunately, we now know that we’re dealing with a global crisis that has led to many deaths and will lead to many more before it is over.
The difficulties arise from the health risks to both clients and staff meeting up to sign and witness Wills and also from the significant restrictions on movement at the present time.
By way of background, Section 9 of the Wills Act 1837 requires that a Will is signed by the Testator in the presence of two witnesses and that they then sign in the presence of the Testator (which in many instances is likely to be contrary to the UK Government’s current advice on social distancing or self-isolation). Whilst the Act itself does not define what is meant by “presence”, case law on the point has held that the Testator must be both physically and mentally present when the witnesses sign – but it’s worth noting that this case law pre-dates the introduction of modern technology allowing for virtual methods of witnessing execution.
The decision in Man Ching Yuen v Landy Chet Kin Wong (First-tier Tribunal (Property Chamber) [the FTT], 2020 (ref 2016/1089)) is also worth noting here – whilst not binding and relating to the execution of deeds rather than a Will. The case considered virtual presence and cast doubt on whether it would suffice when witnessing a document. In this case, the FTT looked at whether it’s possible to witness a signature remotely and considered whether the law in relation to deeds required physical presence or whether remotely witnessing execution of a document would be sufficient. They also considered whether a witness to a signature could attest to the witnessing days after the event or whether it had to be contemporaneous.
Section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 (the LPA) sets out the requirements for validly executing a deed and provides that a deed must be signed in the presence of a witness who attests (i.e. verifies) the signature – but what isn’t clear is what counts as “presence”. When the FTT considered whether “presence” was satisfied by a person watching the signing of a document by Skype, Facetime, WhatsApp and similar applications, it did not make a final determination on this point, but acknowledged that the words in the LPA did allow for more than one possible answer.
The FTT case doesn’t however appear to have completely closed the door on remote witnessing as a method of satisfying the law when executing deeds but there is clearly uncertainty on the point. The Court in that case held that the Applicant had a realistic prospect of “persuading a court or tribunal that physical presence was required” but stated that this was on the basis that the current law was considered uncertain. The Court also looked at the timing of attestation and held that it didn’t need to be contemporaneous with the execution of a deed, but gave no guidance on the time gap that would be allowed, leaving the door open for arguments on this point in future cases.
The Law Commission (Law Com No 386 – Electronic execution of documents) has acknowledged that the law in this area is uncertain. Interestingly, one of the reasons why they leaned towards the view that a witness needs to be physically present was to ensure that the witness could immediately attest the signature. However, as mentioned above, subsequent to the Law Commission’s report, the Courts have held that attestation doesn’t need to be contemporaneous, so the legal position remains unclear.
The SRA’s guidance (https://www.sra.org.uk/sra/news/coronavirus-qa/) makes some useful suggestions such as asking the client whether they have neighbours or someone else that could act as witnesses, as many clients may still be in contact with friends, neighbours or someone similar (perhaps those delivering food or providing support or just checking up on them). It’s advisable to ask any witness to provide their full contact details so that they can be contacted in case of need when the outbreak ends. The Law Society initial guidance on the matter did not address the issue of witnessing and they commented that no-one can be forced to give legal advice in the current circumstances. They stated that “If you believe that following the government’s advice on good hand and general hygiene and social distancing is impractical due to the location of the prospective client then you are free to decline instructions.” They went on to say that firms should, however, “act reasonably and assess the measures in place rather than adopt a blanket ban. Keep a clear and detailed record of your reasons for declining to act, including any distancing and hygiene restrictions difficulties or personal circumstances such as self-isolation which apply”. They also recommended putting a note of your operating arrangements on your website, so that potential customers will have notice when they enquire.
Following this initial guidance, the Law Society has since reported that it has approached the Ministry of Justice and the SRA with a view to looking at current difficulties in executing wills and the possible use of video conferencing facilities. The Law Society made reference in a recent blog (https://www.lawsociety.org.uk/news/blog/where-theres-a-will-were-looking-for-the-way/) to the provisions of Section 11 of the Wills Act 1837 which allows those on active military action to make privileged Wills without any formalities, such as the need for a witness to be present. Perhaps we will see the introduction of similar measures? They have also recently suggested that Solicitors ask their clients to video record the signing of the Will where possible and reiterate that good file notes are kept regarding how instructions were received and how the Will was signed. They also suggest that you give thought to discussing re-signing the Will with clients once social distancing requirements are lifted, if appropriate.
The Scottish Law Society has moved quickly and already introduced temporary measures allowing for virtual witnessing to be used if necessary (https://www.lawscot.org.uk/news-and-events/law-society-news/coronavirus-updates/), subject to certain caveats including taking care to ensure that the Solicitor isn’t excluded from being an effective witness (e.g. by being appointed executor directly or through a trust company). They also suggest using the video call as an opportunity to assess the capacity of the client.
Given the current predicament that firms find themselves in because of Coronavirus, if there is absolutely no other option to get a Will executed and finalised, we believe that firms would have a good argument to justify using virtual witnessing techniques in these highly unusual circumstances which no one could possibly have foreseen, although there are clearly risks involved. If Lawyers are aware of anything that suggests that a Will may be subject to challenge, then they should avoid using this method of witnessing documents if at possible. However, if you do decide to use virtual methods, we suggest that you also take a photograph/screenshot of the video call at the time of execution by the client, showing the witnesses watching the execution by the client, so they may keep this as evidence of the event taking place. Firms may also want to talk through the proposed process and associated risks with their insurers. The SRA has made it clear that where firms and Solicitors make judgment calls in dealing with the execution of Wills, they expect you to keep appropriate records of your decisions and how you have addressed the legal requirements and any risks for your client.
Obviously, when liaising with your clients, great care will need to be taken when handling documents. If you’re unable to send documents to your client by email and/or your client doesn’t have a printer, you will need to either deliver documents by hand or send them by post or courier. This will need to be done in accordance with current Government hygiene guidelines in order to avoid any risk of the spread of the virus. You will need to ensure, so far as reasonably possible, that people handling documents upon receipt do the same (i.e. your client and any witnesses). You should chat through the alternative ways of getting documents executed (and the associated risks) with your clients, either on the telephone, or via Skype/Facetime/Whatsapp or even a Zoom call, if they have the ability to do so. Walk them through how the process will work. Alternatively, send the documents to your client with very clear instructions on how they can deal with executing their Will and getting it witnessed. This will be a rather painstaking process, but unavoidable if the client wants a properly executed Will.
In summary, as there is no authority on the question of whether or not a document can be witnessed remotely using technology such as Zoom or Skype, until such time as the Courts make a definitive ruling, there is clearly a risk in using virtual techniques to witness execution of documents. You should therefore try and ensure that the persons witnessing the Will are physically present. You will need to bear in mind the limitations on who can act as a witness to the signature of another person. Whilst there is no absolute prohibition on a spouse, co-habitee or civil partner acting as a witness, it is clearly prudent (particularly with a Will) and indeed usual practice, to use alternative witnesses so that you can demonstrate independence and avoid any allegations that the document has not been properly executed. It’s also extremely important to remember that anyone intending to benefit from the Will must not sign as a witness otherwise they will lose their gift under the Will.
What is clear is that post-Coronavirus, the Government needs to introduce legislation that reflects the significant technological advances that have taken place in recent years and widen the options available for proper execution of documents.