Witnessing of Wills in the present climate

As I am sure most firms are, we are having discussions about any necessary changes to our usual procedures in light of the current health concerns. Of course, a large proportion of our clients are in the ‘at risk’ category and it appears will soon be told to avoid contact with people.

With this in mind, have members come up with any solutions with regard to the witnessing of Wills, assessing capacity and general advice.

Our ideas have ranged from emailing a Will to the client and leaving them to sort out the witnessing (we all know the problems with this) to attending the client, posting it through their letter box and going through the document from outside through a window. The client then signs and posts it back at which point it is witnessed from outside. The current thoughts appear to be that the virus could survive on paper for up to 12 hours so just handling the document could, theoretically, transfer it. We have also considered asking clients to sign a disclaimer if we do attend. The current front runner, however, is signing at the direction of a testator having been through the document with them through a window…

Of course, most general advice can be delivered over the 'phone and instructions taken. However, this can leave us open to claims of undue influence and it is notoriously difficult to assess capacity this way.

We are concerned that our younger members of staff, in particular, could be guilty of transmitting the virus having been unaware. Question 2 is, in the opinion of members, which would be more negligent? Infecting a vulnerable client or failing to ensure the Will was correctly attested?

Chris Shaw
Graysons Solicitors

I would be nervous of witnessing through a window - would it be signed in your “presence”? There could be someone else in the room you could not see applying coercion…

The ideal solution is for the Will to be sent, the client gets hold of two witnesses to avoid any blame attaching to the firm, with it being done while the solicitor oversees it on Skype of WhatsApp. That of course assumes the client or the witnesses are computer/mobile savvy! Some flexibility over the time of day it is signed would help so far as witnesses are concerned.

Alternatively talk the client through it on the phone while the witnesses are present, or send very detailed instructions, with a disclaimer if the client chooses to take this on themselves rather than visiting the office or using Skype etc.

Simon Northcott

The case of Casson v Dade (1781) has always amused me !

Malcolm Finney

Any advice on the preparation of deathbed Wills? wording etc.

Lucy Leach

You outside of the window with a mobile phone to communicate, together with two witnesses also outside, and rely upon section 9 a) it is in writing, and signed by the testator, or ** by some other person** in his presence and by his direction?

Karl Dembicki
Buckles LLP

@chris.shaw and @simonnorthcott @KarlD How are you all taking instructions and have you been called to a deathbed Will ? How would you approach this?

Lucy Leach

Simon, thank you for your response. However, the situation we find ourselves does not lend itself to ideal solutions, unfortunately. A client who is isolated should not then be asked to bring in two independent people from outside to witness their Will. That is not isolation. If they are already present inside the house then are they going to be independent witnesses?

Karl, yes, that was exactly what I was getting at. The old ‘line of sight’ defence which Malcolm has cited.

Lucy - considering the latest NHS guidance that they will only allow one visitor and in only the most serious of cases, i do not know. The thoughts in our office is that they still have to be done and it will be a case of convincing nursing staff to act as witness, a near impossible task at the best of times.

We think some change of legislation is in order to possibly extend the privileged Will rules from servicemen etc to the general public in times of peril or similar possibly to allow single witnessing or even via skype/facetime so at least it is seen.

Chris Shaw
Graysons Solicitors

I can’t see the Government extending section 11 to civilians as part of its Coronavirus Bill - I can’t find any evidence of a relaxation of the rules during the 1918 Spanish Flu epidemic. If you haven’t seen it there are humbling examples of soldiers’ wills ‘in the event of my death’ where it seems soldiers were provided with a simple precedent to complete. https://www.westernfrontassociation.com/world-war-i-articles/in-the-event-of-my-death-an-analysis-of-what-can-be-gleaned-from-soldiers-wills/ Not sure if this is something that is still provided to serving military?

Karl Dembicki
Buckles LLP

The following has just been published by STEP:

WILLS: STEP recommendation on will signing

In light of the current concerns around coronavirus, members should consider giving clients, particularly
those that are vulnerable, the option of meeting via telephone or video-conferencing. However there is currently no confirmation that e-signatures or video-witnessing will be accepted. Practitioners are therefore in a difficult position as it may not be possible
to comply with the government’s guidance to reduce social contact while also arranging for wills to be validly signed. STEP’s recommendation is that the government’s guidance should be every practitioner’s starting point. In practice this may mean sending
wills to clients and asking them to make arrangements for suitable witnesses to visit them while maintaining distance so far as possible. However, it will be for each practitioner to make a decision on the merits of the particular case and the relative risks
to both the client and the practitioner.

They seem to be suggesting the route I suggested in as many cases as possible. Apart from anything else, it is too great a burden on firms to tie up 3 members of staff at an outside visit for every Will signing, particularly to fit it in when it is not

The client can be asked to arrange two witnesses who do not have to be in the same room, provided they are in line of sight according to Malcolm’s fascinating case, and can witness the signing and then sign in an adjoining room, again in line of sight.
This is a health risk the client will have to accept if they want to make a Will in current circumstances, and there is also the risk they may not be able to obtain witnesses at all willing to go this extra mile for a friend/neighbour. These risks must be
explained when taking instructions.

As for death bed Wills in hospital, there is no way hospital staff will allow a troop of lawyers in to sign a Will, so it is going to be extremely difficult to arrange this, and if instructions are taken in these circumstances they must be subject to appropriate
warnings so far as this is concerned.

Simon Northcott

There was a string citing Cason v Dade from a Chancery Barrister some time ago. It might have been on Linked In.

Not certain if this is of any real help, but the report of Cason v Dade (1781) 21 ER 399 such as it is reads as follows:

“The testatrix sat in her coach, and executed her will at the door of her attorney’s house. The witnesses attested it in the office of the attorney, through the window of which, it appeared by the evidence of a person in the carriage, the testatrix might see what passed. The witnesses, as soon as they had subscribed the will, took it to her, when she folded it up, and put it into her pocket. The Lord Chancellor held this to be a good execution of the will.”

There seems also to be an element of physical delivery to the testatrix involved and therefore proximity involved, not just “line of sight”. It is not “eyesight” when through a screen and electronic transmission.

Would hospital staff let a will into an isolation ward for signature, let alone transport it out to witnesses once signed by the testator? If the will were to be witnessed by sight through a window in the ward, assuming that there is one, then should the will not be taken back to the testator (quare in a sterile transparent envelope handed to the medical staff) and left with them to fully concord with the Lord Chancellor’s ruling? Again, this is hypothetical and would need the agreement of the hospital as to the document being passed back through their staff and remaining with the testator until their passing, in which case it would be returned with their effects.

The delivery element seems to have been important, in that the testator had seen it being witnessed as well and accepted it as having been so, by folding it and pocketing it, despite it having been doubtless out of sight during it being carried to her. The key was the witnesses taking it to her. Not sure whether a nurse would satisfy the whole criterion, unless they were one of the witnesses.

Peter Harris

I posted on LinkedIn about this the other day.

I am pleased to see STEP have responded and clarified the position for practitioners (Simon can you post the link to that article please?), but sadly its not a help to clients with respect to witnessing. Elderly people self isolating will find it hard to get two witnesses in the room (or line of sight!) with them. The world has moved on from the times of the Spanish Flu and we now have reliable forms of technology that could offer our clients a solution. I appreciate no one wants to be the test case but having to simply ignore the tech because of cases that are centuries old, at the current time and in the current situation, is frustrating for us and clients.

Sarah Mannooch
Kreston Reeves Private Client LLP

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I obtained a Grant of Probate about three years ago in the estate of a deceased soldier who had been killed on duty. His Will had been made on a printed form, supplied by the Army or the MOD, similar
to the one mentioned by Karl Dembicki in his post.

Cliona O’Tuama

Has The Law Society made any comment on the matter? With due respect to STEP, in the absence of legislation on the subject, I would feel happier following the recommendations of my professional
body, rather than STEP.

Cliona O’Tuama

I wonder what the equivalent of s.9 was when the will in Cason v. Dade was executed.

s.9 Wills Act 1837 requires that the testator signs or acknowledges their signature “in the presence of two or more witnesses present at the same time”. Each witness then either “attests and signs the will; or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness”.

If the same, or similar, wording did not govern the validity of the Cason v Dade will, are we at risk of confusing apples and pears?

In any event, I understand that “presence” in the context of s.9 means physical presence at the time of signature or acknowledgement by both the testator and the witnesses.

I could see the possibility off the testator signing their will, it being passed to someone or persons on the other side of a transparent screen who can then sign as witness(s), perhaps whilst on the phone to the testator who acknowledges their signature when the document is held up to the window for them to see, and the witness(s) can them acknowledge their signature(s) to the testator, having signed the document before holding it to the “window”.

Realistically, I suspect this could only work if the testator is not in hospital, as I cannot see will writers of any ilk being allowed within any area of contagion (even if the will writer wanted to be there).

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

I’m not sure I agree with Peter’s comment on the case to which I referred in my earlier post where he suggests that “The delivery element seems to have been important…”.

I believe the Lord Chancellor was simply ruling that attestation of the will was satisfactorily carried out as the testator, had she chosen to look through the window of the attorney’s office from her carriage, her line of sight was such that she could have observed the witnesses.

The subsequent delivery of the will to the testator etc was not relevant to the issue upon which the Lord Chancellor was ruling.

Interestingly, apparently the horse pulling the carriage moved or reared up resulting in movement of the carriage such that the testator had as a consequence a line of sight into the attorney’s office, the location of the witnesses.

Presumably, today if the testator was sat in the driving seat of her car and accidentally turned the ignition without pressing the clutch thus causing the car to lurch foreword all would be well; maybe this could be a selling point for manual over automatic cars.

Malcolm Finney

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We have considered all of the above and are trying out various options. I think as a firm we are taking the view that allowing people to complete wills at this time is very important so we need to try and change the way we do things to accommodate.

One thing we did consider is making a list of all wills signed in this way and once face to face meetings are available offering a free re-sign? Again not ideal but perhaps a way to head off some problems?

Again, I am sure like everything at the moment there is no right answer but interested to hear people’s thoughts?

Paul Mounce
Graham & Rosen

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Re Paul’s comments, I found the following Statute of Frauds Act 1677:

"Regarding V. Devises of Lands to be in Writing and signed and attested by Three or Four Witnesses.

And bee it further enacted by the authority aforesaid That from and after the said fower and twentyeth day of June all Devises and Bequests of any Lands or Tenements deviseable either by force, of the Statute of Wills or by this Statute or by force of the Custome of Kent or the Custome of any Burrough or any other perticular Custome shall be in Writeing and signed by the partie soe deviseing the same or by some other person in his presence and by his expresse directions and shall be attested and subscribed in the presence of the said Devisor by three or fower credible Witnesses or else they shall be utterly void and of none effect:"

Malcolm Finney

The discussion so far has assumed that the testator must sign the will themselves.

However, s.9 allows for a will to be signed by the testator “or by some other person in his presence and by his direction”.

Provided that a will includes the appropriate signing clause, and there are three person - the one signing at the testator’s direction and 2 witnesses – might this not be a more immediate resolution of the concerns/limitation of risk to the will-writer than waiting for a relaxation in the legislation or taking a chance and having a will executed in ways not currently permissible (so that there can be no guarantee that it is valid).

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

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Whilst wills are usually signed by the testator, s.9 allows for a third party to validly sig the will, provided that they do so in the presence of the testator and at their direction.

The immediate concerns/risks to the validity of wills might be reduced by adopting this practice, although it would require 3 persons to be “outside the window” – one to sign the will and the other 2 to act as witnesses.

The will could be held up to the window so that the intending testator can read it and confirm they want it executed as their will.

I am not a fan of waiting for the legislation to be relaxed, or for anticipating changes that might be made and, thereby, not being confident that a will would be valid.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

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Just reading out the judgment. I made no comment other than to point it out.

However, reacting to Malcolm’s gentle chiding, s.9 WA 1837 does currently require an acknowledgement. (a) is linked to ( c) through (b) by two "and"s:

"No will shall be valid unless—

(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
( c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary."

It may be upon that principle of acknowledgement, by folding and pocketing the will that that the Lord Chancellor adjudicated in favour of the will’s formal validity. But, who knows.

On the basis that the delivery, folding and pocketing could be relevant (would it have been reported if it were not in some manner relevant?) Paul’s comment on s.9 WA and the directed threesome might bear out the possibility that the testator needs to acknowledge, therefore appropriate the will and the witnessed signature as their own in those circumstances. That in itself might be the window of opportunity in this digitalised age. Presence (“line of sight”) is one thing, direction and acknowledgment another. I leave it to more senior Chancery colleagues to give their position on whether there was a pre-existing common law principle of acknowledgment and then to what extent as to substance digital presence cannot be amplified to a sufficient level by acknowledgment. It would be stretching the English to say that it can. The wording relating to “his signature” at (b) can only refer to the signature of the testator or his proxy.

Anyone interested in electronic will execution should look at the Californian legislation wording, which has to go into such detail on this point, that the 1837 wording appears insufficient.

Does anyone have a suitable wording for a directed s.9 signature?

How can the direction be proved?

I would suggest that the delivery was important as the testatrix appropriated the will as being the will validly witnessed in her presence, stretched to “line of sight”. Had she not so done, would the Lord Chancellor have so favoured the Wills validity?

The same might have been said for a testator directed execution although the statute might be sufficient in itself.

Interesting times.

Peter Harris