Will-making and coronavirus: can wills be remotely witnessed?

We are living in extraordinary times right now. In the grip of a global pandemic, many people are concerned to ensure that their affairs are in order and that they have made a Will. However, social distancing measures and the need to shield the vulnerable from infection present particular challenges in terms of the formal requirements for making a Will.

Over the last few days, I have received enquiries concerning the question of whether or not a Will can be witnessed remotely and how, otherwise, Wills should be witnessed given the social distancing measures. As reported in the Law Society Gazette, the Law Society and the Ministry of Justice are presently in discussions with a view to relaxing the requirements for making a valid Will. It is likely that we will see legislative reform. Quite what the shape of that will be, remains to be seen. One possibility is the introduction of measures mirroring s. 11 of the Wills Act 1837, 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 of course the making of the Will must be evidenced in some way).

This post deals with the question of how to tackle the requirements for witnessing a Will in the meantime.

What are the formal requirements for making a valid Will?

Members of the legal profession reading this post will of course be aware of the formal requirements for making a Will, but for the benefit of any members of the general public reading, a Will must comply with the requirements of s. 9 of the Wills Act 1837 in order to be valid. A will which fails to comply with these formalities is invalid and cannot be admitted to probate.

‘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 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), but no form of attestation shall be necessary.’

There are other requirements for making a valid Will – that a person possesses testamentary capacity, that the Will is made free from any undue influence, and that the person knows and approves of the content of their Will. The focus of this post is how to comply with the requirements for witnessing the Will set out in s.9 of the Wills Act during the COVID-19 crisis.

Whilst the requirements of s. 9 appear to be fairly simple, there is quite a lot that can go wrong.

The witnesses must see or have an opportunity of seeing the signature – it is not necessarily sufficient that they were in the same room. The testator can merely acknowledge his signature but the witness must then see the signature. A will is not duly executed if the witnesses have not seen the testator sign the document and did not see or notice his signature on it, but merely complied with an instruction to sign their name on a sheet of paper – they must intend to attest and verify the signature (Serrington v Sherrington [2004] All ER (D) 203 (Jul)).

The will must be signed by the testator, or the testator must acknowledge their signature, in the presence of both witnesses at the same time before either of them attest the signature. However, the witnesses do not need to sign in each other’s presence.

It has also been held that the testator must be both physically and mentally present when the witnesses sign (Right v Price (1779) 1 Doug KB 241; Re Killick’s Goods (1864) 3 Sw & Tr 578). Again, the testator must see or have an opportunity to see the witnesses sign.

Note also, for the benefit of any lay people reading, anyone that you intend to benefit under the Will must not be a witness (nor must their spouse) since s.15 of the Wills Act 1837 provides that, whilst their signature will be valid, they will lose their gift under the Will. This presents a particular problem in the current crisis given the restriction on socialising outside of one’s household.

Can the Will be witnessed remotely?

S. 9 of the Wills Act requires that the testator (or some other person at the testators direction and in his presence) signs the Will in the presence of the witnesses and that the witnesses sign in the presence of the testator.

This begs the question of what is meant by “presence”. Must the testator and the witnesses be physically present in the same room, or is it possible for the execution of the Will to be witnessed remotely by the use of videoconferencing technology such as Skype? Could, for example, the Will be signed by a third party, who is in the physical presence of the witnesses, at the direction of the testator who is observing the proceedings remotely?

Much of the case law on Will formalities long predates the invention of Skype and modern day technology was unimaginable as anything other than science fiction at the date that the Wills Act was enacted. Nonetheless, the decided cases on the meaning of “presence” are of interest.

Brown v Skirrow [1902] P. 3: In this case the testatrix signed her will in a busy shop. One witness, the grocer’s assistant, saw her sign and attested the Will but the other witness, the grocer himself, was at the other side of the shop having a discussion with a salesman at the time that the testatrix and his assistant signed the Will. There were customers in the shop in between the grocer and the testatrix when she was signing her Will. The grocer then signed the Will at the testatrix’s request.

Gorell Barnes J stated:

“You cannot be a witness to an act that you are unconscious of; otherwise the thing might be done in a ball-room 100 feet long and with a number of people in the intervening space. In my view, at the end of the transaction, the witness should be able to say with truth, “I know that this testator or testatrix has signed this document.””

It was held that “presence” must mean visual presence. The Will had not been properly attested even though the testatrix had acknowledged her signature to the grocer, since that acknowledgment needed to take place in the presence of both witnesses before they each attested it.

Casson v. Dade (1781) 1 Bro.C.C. 99 is another case of interest. In an age where judgments would have been written by hand, the report is admirably economical and notes as follows:

“Honora Jenkins having a power, though covert, to make a writing in the nature of a will, ordered the will to be prepared, and went to her attorney’s office to execute it. Being asthmatical, and the office very hot, she retired to her carriage to execute the will, the witnesses attending her: after having seen the execution, they returned into the office to attest it, and the carriage was … put back to the window of the office, through which, it was sworn by a person in the carriage, the testatrix might see what passed;
immediately after the attestation, the witnesses took the will to her, and one of them delivered it to her, telling her they had attested it; upon which she folded it up and put it into her pocket. The Lord Chancellor inclined very strongly to think the will well executed …”

Honora’s maid gave evidence that at the moment the witnesses were signing the carriage horses reared up, causing the carriage to move into a line of sight with the office window. The maid stated that, had Honora looked through the window she could have seen the witnesses sign. This was considered to be sufficient by the court.

Casson v. Dade was also applied by Senior Judge Lush in In Re Clarke (19 September 2011), a case concerning the execution of a lasting power of attorney in circumstances where the donor was in one room and the witnesses in another, separated by a glass door. Senior Judge Lush held as follows:

The emphasis in the reported cases is therefore on the need for the testator and witnesses to have a clear line of sight and presence has been held to mean visual presence. The key question, as encapsulated by Gorell Barnes, J, being whether or not the witness can say with truth (and likewise the testator of the witnesses), “I know that this testator or testatrix has signed this document.”

There is, presently no authority at all on the question of whether or not a document can be witnessed remotely using technology such as Skype.

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 – suggestions on how this might work given social distancing measures are set out below.

That said, it is certainly arguable, in my view, that the Wills Act should be construed to take account of technological change. It is conceivable that, given the emphasis on visual presence and the line of authority indicating that a line of sight through glass will suffice, the courts may hold that remote witnessing via videoconferencing technology is sufficient to comply with the act.

The issue of remote witnessing was commented upon by the Law Commission in its report last year on the Electronic Execution of Documents as follows:

“5.30 The provisions of the LPMPA 1989 and the Companies Act 2006 require the “presence of a witness”. Although they do not specify “physical” presence, it is not clear that the requirement may be satisfied by remote forms of witnessing, such as by video link or other types of technology.

5.31 As a matter of statutory interpretation, there is a presumption that Parliament intends a court to interpret legislation in a way that allows for changes that have occurred since the Act was initially drafted. Such changes may include technological developments.291

5.32 How this principle of interpretation is applied will depend on the nature of the enactment and the way in which the provision has been expressed. Therefore, in Royal College of Nursing of the United Kingdom v Dept of Health and Social Security, Lord Wilberforce said: the courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive.

5.33 It could be argued, therefore, that “presence” should be interpreted broadly to include “virtual” or “remote” presence to account for changes in technology. However, section 1(3) of the LPMPA 1989 and section 44 of the Companies Act 2006 are restrictive, rather than permissive, provisions. The wording of these provisions limits the validity of deeds to documents which meet certain requirements.

5.34 There are also significant policy questions which should be considered before extending the provision to include remote or virtual witnessing, particularly in relation to section 1 of the LPMPA 1989 which applies to individuals. Deeds may be executed by individuals to confer authority on another person to make decisions about the donor’s personal welfare, and/or property and affairs.

5.35 Some consultees argued that it would be open for a court to decide that remote or virtual witnessing would satisfy the statutory requirements. Although we agree that may be the case, we are not persuaded that parties can be confident that the current law would allow for a witness viewing the signing on a screen or through an electronic signature platform, without being physically present. This conclusion is based on the combination of the restrictive wording of the statutory provisions and the serious policy questions underlying any extension to accommodate technological developments.”

The Law Commission report was not concerned with the execution of Wills (which it appears cannot presently be electronically signed). Nonetheless, these comments apply just as aptly to the requirements of the Wills Act 1837, which are also restrictive, rather than permissive, provisions. Remote witnessing introduces evidential difficulties concerning the question of whether or not the document signed by the testator is the same document signed by the witnesses. Technology, as anyone who has sent the past couple of weeks trying to conduct meetings by Zoom or Skype will know, is not infallible. These limitations and the overriding legislative purpose of preventing fraud and ensuring the veracity of a document – particularly one that will only take effect after the maker has died and can no longer give evidence about the circumstances in which it was made – may weigh against interpreting s. 9 of the Wills Act as permitting remote witnessing.

Suggestions for executing Wills during the COVID crisis

Until such time as any new measures are introduced, it is going to be necessary to continue to deal with the execution of Wills with the testator and the witnesses being physically present.

Cases such as Casson v Dade, applied more recently in Re Clarke offer a potential solution, with the testator perhaps sitting in a car and the witnesses signing on the bonnet, or the testator and witnesses being on opposing sides of a glass partition in order to observe the act of signing, passing the document through the letter box. Casson is a fairly old case (even by the standards of equity), but it appears likely to be followed (at least on the point of principle as to whether or not a Will can be witnessed through a glass window) as it was in Re Clarke. Casson was mentioned without disapproval (although described as an “extreme” case) in Couser v Couser [1996] 3 All ER 256. This method carries the risk that the Will may be challenged on the grounds that the requirements of s.9 of the Wills Act have not been complied with. I would suggest that if this method is adopted additional precautions are taken to ensure that all parties are satisfied that the document being signed on each side of the partition is the same document – holding the document up to the window before signing and recording the proceeding by some method on each side would be a good idea.

Otherwise, execution could take place in an open area whilst observing the recommended distance of 2m. That is my preferred method since there is less opportunity for any doubt to arise as to whether or not the document signed by the testator is the same document signed by the witnesses, or as to whether or not the other requirements of s. 9 are met, and no need to depend upon dusty case law.

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 – based upon this article on the BBC website 72 hours should suffice. Of course, follow all of the other recommendations such as avoiding touching one’s face and washing hands as soon as possible to a couple of rounds of “Happy Birthday”.

In circumstances where many more Wills will be executed without the presence of a supervising solicitor, other steps such as preparing short statements from the witnesses confirming the circumstances in which execution and attestation took place or videoing the act could help to avoid many contentious probate disputes further down the line.

What if you simply cannot execute your Will in the presence of witnesses?

It is conceivable that some people may simply find themselves facing circumstances of grave illness, or otherwise needing to put their affairs in order, and unable to find anyone who can assist by physically attending to act as a witness.

The following options are suggested but it must be understood that all of the following carry the risk that the deceased’s wishes will NOT be upheld:

• A testator could attempt to make a Will using remote technology on the understanding that there is no guarantee that the Will will be found to comply with s.9 of the Wills Act. The most convenient method would be for the testator to appoint someone to sign the Will on the testator’s behalf and have that person sign the Will in the physical presence of witnesses who then sign, with the testator observing the process via Skype or similar. It is noted in Tristam and Cootes that an attesting witness may validly sign a will at the direction of the testator and as attesting witness without signing a second time when it is clear that the witness had intended to perform the dual function of both signing the will on behalf of the testator and of witnessing the direction to do so (on the authority of Re Elsie Marsden Deceased LTL 21/3/2006, an appeal from the Registrar’s refusal to admit the will to probate) – this would reduce the need for a third participant. The whole process should be recorded and extra steps should be taken to ensure that the testator can see on camera that the document signed at their direction and by the witnesses accords with their instructions. I must emphasise again that this is a highly risky way of proceeding and carries the risk that the Will will be held to be invalid.
• With credit to Barbara Rich of 5 Stone Buildings, a person could write and sign a letter of wishes on the understanding that it will not be legally binding but in the hope that its moral force will be respected and that the persons to whom the estate ultimately passes will honour its terms. I would add that such a letter might also assist any party with standing to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, in so far as it offers some evidence about the wishes of the deceased. However, there are many other factors that determine whether or not provision will be made under the IPFDA. Only parties within the limited categories of eligible claimant can make a claim, and the test that the court applies in considering the claim is an objective one, based on whether or not the court considers that reasonable financial provision has been made for the deceased, and not a subjective question of whether or not the deceased thinks they have made reasonable provision.
• With credit to Gerard McDermott QC for prompting me to think about circumstances where equity will step in to uphold an informal testamentary gift, a person could also attempt to make a donatio mortis causa (a death bed gift). I wrote an article some time ago on the decision in King v Dubrey, which you can download here Pages from TQR – July 2016-2. Two caveats, the article represented the law at the time that I wrote it and I must apologise for the title which appeared a witty if slightly morbid suggestion by the editors but very distinctly unfunny now. I will endeavour to find time to write something more up to date on the doctrine.
• These are suggestions of last resort. In each of the above cases a formally valid Will should be made as soon as possible. 
• A person could alternatively make a life time gift, but gifts are not generally revocable. If the person making the gift survives and wishes to recover their property, they will have to depend upon the recipient honouring their wishes.

In every case of a Will or, if needs must, some other informal arrangement, as much evidence should be recorded and retained as possible to dispel the suspicion that the expressed wishes are the product of coercion or that the person lacked mental capacity. 

Stay safe.