Signing Wills and Lasting Powers of Attorney in a time of social distancing
During these unprecedented times, many people, like those in the BPE team, are getting used to working remotely and adjusting their working methods in accordance with the government restrictions surrounding social distancing.
Given the circumstances, we have understandably received a surge of enquiries regarding the preparation of Wills and Lasting Powers of Attorney, as people look to get their affairs in order in the face of the COVID-19 outbreak.
However, as there are strict rules surrounding the signing of a Will and also for signing Lasting Powers of Attorney, this has led to professionals having to review how this can happen in a world where people are not meant to be coming within close proximity of one another. It has also led to The Law Society and the Ministry of Justice reviewing how they can make the most of modern technology capabilities.
In relation to Wills, the relevant legislation which sets out the requirements for validly executing a Will is the Wills Act 1837, which obviously did not envisage a world where you can speak and see people thousands of miles away. The Act provides that the person making the Will, the testator, needs to sign the Will in the presence of two independent adult witnesses who are both present at the same time. This can be difficult to accomplish at present as people are expected to only come into contact with people from their own household, but it is often these people who will be receiving a gift in the testator’s Will. If a beneficiary under a Will, or their spouse act as a witness, they shall invalidate the gift to them. On most occasions, it would simply be a case of the solicitor who wrote the Will to meet with the testator to witness the Will signing together with a colleague. However, with solicitors working remotely, and witnessing a Will by video messaging not yet accepted, an alternative approach needs to be adopted.
One way of possibly navigating this is that the testator can ‘acknowledge’ their signature to the witnesses, meaning that the testator has signed the Will earlier, and then confirms to both the witnesses that the signature is theirs. Having said this, it would of course be preferable for the witnesses to actually see the testator sign the Will so that it is clear to them what has taken place should there be any queries later on. The Wills Act also provides that the witnesses do not necessarily need to sign in the presence of one another, rather it is only required for each to sign in the presence of the testator. However, given the practicalities surrounding this it would be advised to have the witnesses present when each other signs the Will.
If the witnesses are able to be present when the testator signs, it is then a question of interpretation as to what constitutes as ‘present’. Importance in case law, some of which dates back to the 18th century, is placed on being in the line of sight of the signature, or at the very least being in a position where they could have seen the signature if they had chosen to do so.
With the current restrictions in place, one suggestion might be to conduct the signing in your house, whilst the two witnesses stand outside an open window, whereby they are able to stand in such a position to be able to see the testator sign and then the Will can be passed through the window, or left on the window ledge for the witnesses to collect. Each of the witnesses can then sign whilst keeping the required distance apart from one another. Alternatively, it may be preferable to conduct the Will signing in a front garden or street as opposed to through a window.
Instructing a solicitor to prepare your Will would mean that you would have a professional to give advice as to how best to execute your Will in your circumstances within the current working environment. A solicitor would be able to virtually attend the Will signing by video conference to talk through the Will signing requirements so that everyone present knows what is required from them, which is the advice being provided by The Law Society.
Similarly with Lasting Powers of Attorney, the government body which regulates this area of work, the Office of the Public Guardian, requires that the creator of the document(s), referred to as the ‘Donor’, signs the document(s) in the presence of an adult witness, who must not be appointed as an attorney under the document. Although the attorneys do not need to be present at the same time as the donor when signing the document, this shall still require efficient planning to ensure that the requirements are adhered to, which is again where an instructed professional would be able to assist in ensuring that the documents are correctly executed.
Reviews have been carried out in recent years as to how technology can be incorporated into the execution of legal documents, with electronic signatures on a number of deeds now being accepted. Wills remain an exception to this and it is still the case that great care has to be taken when signing Wills and Lasting Powers of Attorney, particularly in such a difficult time. Instructing a solicitor to assist with this will ensure that the document is valid and provide peace of mind that the document will be able to be relied upon when it is eventually called upon.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.