Coronavirus Risk Management Series for Law Firms: Drafting and Executing Wills

Electronic signatures are still not permitted, so remote witnesses (who should have adequate video and sound quality to witness the testator’s signature), must each be provided with the hard copy of the signed will after signature so that they too can sign it. In most cases, witnessing in person is likely to prove considerably more straightforward, and remote witnessing is intended to be a last resort, rather than the norm. Practitioners may therefore still find the guidance below to be helpful.

Solicitors involved in the preparation of wills are classed as key workers. However, the current pandemic has turned upside down the normal working practices of most wills and probate practitioners. In this article we make some best-practice suggestions for the preparation and execution of wills in compliance with social distancing requirements.

An obvious challenge when advising remotely is confirming the identity of the client. Firms should ensure that they have procedures in place to verify that their client is who they say they are, and that they keep appropriate records of due diligence which is undertaken in that respect. SRA guidance is not prescriptive as to what is required, but it appears that client due diligence can be undertaken remotely for most instructions.

Preparation of the will itself can also generally take place remotely. Practitioners can take instructions from the testator, and advise as to the contents of a will, by electronic means such as email, telephone or one of the many available video conferencing services such as Skype, Zoom, Facetime etc.

Detailed file notes should be taken of any advice which is not given in writing or otherwise recorded.

Some clients may be less well versed with this technology, such that they need help from (for example) relatives, who may be beneficiaries, to start and end calls. Practitioners should nevertheless satisfy themselves:

1. That they are able to speak with their client alone when giving advice, if that is possible; and
2. That their instructions represent the client’s wishes. Practitioners should of course remain alive to the risk of undue influence.

Again, these are points which should be recorded in file notes.

It is also a familiar requirement that solicitors be satisfied of their clients’ testamentary capacity and, if in doubt, that the ‘golden rule’ set down in Kenwood v Adams be followed. When there is doubt as to a client’s capacity, this has typically required a medical assessment prior to execution of the will, or that execution of the will be witnessed by a medical practitioner. During times of strain on the NHS, social distancing, and lockdown, it may be unusually difficult to arrange a capacity assessment or for a medical practitioner to be available as a witness. Ideally, preparation of the will should be delayed until that could be arranged. If, however, that is not possible, perhaps because the will has to be signed urgently, experienced practitioners should satisfy themselves of their client’s testamentary capacity through questioning, and should make detailed notes of their conclusions. You may also wish to arrange a follow-up medical assessment after signing, if possible.

Prior to the pandemic, practitioners would often attend their clients personally to arrange execution of the will. That may now be the exception, rather than the norm, and where physical attendance is not possible it will be necessary instead to send detailed advice to the client as to how to execute their will validly. It will also be necessary to find appropriate witnesses: perhaps neighbours or, should your client be in a care home, for example, employees of that care home. Some points to keep in mind are:

• Electronic signatures are not permissible when executing wills.
• Witnesses need to be physically present – a will cannot be validly witnessed remotely, whether via video link or similar technology.
• It is permissible for witnesses to stand 2 metres away so as to comply with social distancing requirements. It is also permissible to witness a signature through glass, i.e. from the other side of a window, so a witness need not necessarily be within the same room as the testator. In either case the witness needs only to have a clear view of the signature process.
• Solicitors can supervise the process remotely via video link if not acting as a witness themselves.
• Consider asking the client to keep a video recording of the signing and witnessing process, if possible.
• You may also want to think about discussing re-signing the will with clients once social distancing requirements are lifted, where this is appropriate.