With the need to adhere strictly to the government guidance on social distancing and self-isolating, as solicitors we will be unable to attend a hospital or a care home to witness a will. It is also very unlikely that we will be able to attend any testator in person. So, what can be done?
s.9 Wills Act 1837 requires that a 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)”.
Case law has established that what is required for ‘presence’ is that there should be visual contact between the parties concerned (so that they could see if they chose to look) and that a witness knows what is going on.
In the unlikely event that there are people in the testator’s house who are neither beneficiaries, nor spouses/civil partners of beneficiaries, the will can be witnessed by those individuals as usual.
Generally, this will not be the case and witnesses will have to be found externally.
The testator could sign the will him or herself (wearing disposable gloves, if possible) within sight of the two witnesses, who could be either on the other side of a window, over the garden fence or with the front door open, stood more than two metres apart. Then having signed the will, the testator can put the will outside the door or over the fence and the witnesses (also wearing disposable gloves) pick it up and sign within sight of the testator.
It is also possible for another person to sign on behalf of the testator, provided it is done in the testator’s presence and by their direction. To further reduce contact, it is possible that the person signing on behalf of the testator can also be a witness.
A further, riskier, approach is also being much debated: the use of high tech in the form of Zoom, FaceTime, Skype or similar video conferencing. The suggestion is that the testator could sign the will with two witnesses watching, then scan the document to the witnesses, who would sign with testator online and scan the signed document back. The whole process could also be recorded.
Whilst The Law Society of Scotland has suggested that this procedure is acceptable, The Law Society in England and Wales takes the opposite view: “Under the Wills Act 1837, it is not permitted to witness a will via video messaging as a witness must be physically present, however it is possible to supervise the signing of a will using electronic means where you are not acting as a witness to the will.”
A lot of practitioners believe that, in light of case law, where the clear intention of the testator is apparent from the form of the will, the court should approach the question of the due execution and formalities from the point of view that the court should give effect to the testator’s wishes if it is at all possible to do so.
But until there is a test case or clear unequivocal guidance, it would be best not to rely on the high-tech route if at all possible.
The Private Client Team at Hanne & Co are here to help and we can be contacted on 020 7228 0017.
Prue Abrahams is a Solicitor in Hanne & Co’s Private Client Team