Coronavirus has had a massive impact on our lives and the area of Wills is no exception.
First and foremost, it has been difficult (but usually not impossible unless a Client is having to “shield” because of being in a clinically very vulnerable category) to continue with tried and tested practices that involve physical meetings, where Clients and their Advisors are present together, either when instructions for a Will are being discussed, or when documents are being signed.
Taking instructions “remotely”, by using video calling is an option, and in some cases there may be no safe alternative. Discussing the instructions of a Client this way (or even by a non-video phone call) is unlikely to offer the same safeguards as a face to face meeting, and issues like checking a Client’s capacity to make a Will (Is the Client of sound mind?) and acting voluntarily (Is the Client being subjected to undue influence or pressure from a third party?) may be harder to assess or detect.
The completion of a Background Questionnaire by a Client prior to any “remote” taking of instructions is likely to be useful, and helps as a method of cross-checking facts.
In other areas of law, especially in a business context, it is common practice for lawyers and their Clients to arrange to sign legal documents “electronically”.
This can take a number of different forms, (web-based e-signature platform, pasting electronically a signature onto an electronic version of a contract, typing a signatory’s name into an e-version of a contract/document etc.)
Crucially, for the time being at least, the general rule is that Wills require actual rather than a “virtual” signature and here lies our biggest challenge.
The signature of a Client must also be made or acknowledged in the presence of 2 (minimum) witnesses present at the same time, who must then also sign the Will.
Despite much speculation, the current consensus of opinion is that “presence” does mean physical presence of the parties involved, and that Wills cannot be signed and witnessed remotely (in effect via Skype or other video calling technology).
Existing case law confirms that being present together does not necessarily mean in the same room or occupying the same physical space – “visual proximity” can be enough, so long as there is a clear line of sight and the people involved are able to observe one another. Accordingly, witnessing through a window (internal or external, or even a car windscreen) will satisfy the legal requirements.
Undoubtedly, most meetings to arrange the signature of Wills can be and are managed in a way that reduces the risks of virus transmission to manageable levels – use of outdoor space if possible, face masks/coverings, availability of sanitiser and wipes etc., For elderly and vulnerable Clients the option of using a window presents an additional safe alternative, without any increased exposure to health risks.
Is it time to reform the law and relax the rules on signature of Wills, or would that amount to an unjustifiable increase in the risk of Wills being completed under duress or worse fake/fraudulent Wills being created?