Wills in a time of social distancing and self-isolation

While the government has included solicitors who act in connection with the execution of wills as “keyworkers”, confusion currently abounds as to best practice when it comes to taking instructions for, preparing and executing wills.

A number of professional bodies and membership organisations, including the Law Society, STEP and Solicitors for the Elderly (amongst others) have been liaising; and the Law Society has put forward proposals to the Ministry of Justice to look at how it might relax the formal requirements on executing and witnessing wills, and help to fast track LPA registrations.

However, at present we must work within the confines of the existing requirements. During current lockdown conditions, solicitors cannot go into hospitals and care homes, for example.

In this article we consider:

• how to take instructions without face-to-face contact
• what to do if there are concerns about capacity or undue influence
• what steps clients can take to execute wills correctly.

Taking will instructions while social distancing

For many years, instructions for wills have been taken by phone, by post and, more recently, online to meet client demand. As such, many of us are already well-placed to take instructions “at distance”.

The potential problems with such instructions include the increased scope for misunderstanding and the difficulty of assessing capacity without a face-to-face interview.

Avoiding misunderstanding

Ideally, and assuming circumstances allow, do not rely solely on written instructions. Try to talk to the client, whether over the phone or via a video link (Zoom, for instance, quickly seems to have become the software of choice for professionals around the globe). This will allow you to ask follow-up questions and check what the client means when they use terms such as “property” and “my children”.

If possible, record the “meeting” (see below for steps involved in getting consent) and write your client a full and clear explanation of what the will does. Have the client confirm their understanding.

Discuss the content of previous wills (if any), the reasons for changes and why certain people have either been included or notably excluded. Make sure there is a full record of any such reasons and, where possible, that those reasons are supported by evidence. This will help address any potential questions over capacity or undue influence in the future.

While some clients may not feel that now is the time for any complicated tax-saving arrangements, the use of a fully discretionary will or flexible life interest may be a useful way of buying breathing space.

Assessing testamentary capacity

You may find that after talking to a client you have concerns over their capacity or the client may have difficulties in communicating their wishes, for instance as a result of a stroke or progressive illness which may make it difficult for you to make a proper assessment.

Face-to-face medical assessments are unlikely to be possible. However, is it possible to get an assessment done remotely?

Inevitably, some non-verbal cues may be missed when assessing the mental state with remote interviews … However, in most cases the assessment is straightforward

Dr James Warner, Halcyon Doctors

We asked some specialist providers of capacity reports whether this is possible. TSF Consultants, for example, has recently started carrying out virtual capacity assessments, conducting a number of testamentary assessments over a wide range of platforms (including FaceTime, Microsoft Teams, WhatsApp, Skype and Zoom) with people suffering from cognitive conditions such as dementia, stroke, brain injuries and cerebral palsy. Those it has assessed have also had a wide range of communication problems: “We actually developed our remote assessments in conjunction with a speech and language therapist because we anticipated we would need to be able to deal with a whole array of communication issues.”

Similarly, Halcyon Doctors are doing video assessments using secure video conferencing. Dr James Warner says: “The technology is easy for clients who just require access to a laptop, tablet or smart phone. Age is no barrier; I assessed a 93-year-old last week. It is possible to do a complete diagnostic and capacity assessment with this technology. Inevitably, some non-verbal cues may be missed when assessing the mental state with remote interviews, so we caveat our reports accordingly, especially if nuanced or very contentious. However, in most cases the assessment is straightforward.”

What to do if you are doubtful of capacity?

Sharp v Adam [2005] EWHC 1806 (Ch), although only a first instance decision, is useful because Nicholas Strauss QC, sitting as a deputy judge, actually addressed this issue.

Mr Adams was terminally ill with a progressive disease. He had severe communication problems and was on a heavy drugs regime. He asked his solicitor to make a new will, disinheriting his daughters and instead leaving everything to the employees who ran his stud farm. The solicitor, Miss Hall, attended with the deceased’s GP [Dr White]. They were satisfied that the deceased fulfilled the first three elements of the Banks v Goodfellow test, namely that he:

• understood the nature of the act and its effects
• understood the extent of the property of which he was disposing, and
• was able to comprehend and appreciate the claims to which he ought to have given effect.

However, they were uncertain as to the fourth element (“that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made”).

[The solicitor’s] duty was to warn her client that the will might be challenged and, if he ignored the warning, implement his instructions without further delay

Nicholas Strauss QC

 

At 226 of the judgment, Nicholas Strauss said: “What then should a solicitor do in such circumstances? In my judgment exactly what Miss Hall did do. She was satisfied, in relation to those elements of the Banks v Goodfellow test on which she could judge, that her client was competent. She had no practical means of reaching a judgment on the other elements of the test, whether by lengthy further examinations by specialists or by further enquiries into the family history (which by themselves would not have sufficed anyhow).”

“In such circumstances, her duty was to warn her client that the will might be challenged and, if he ignored the warning, implement his instructions without further delay, both of which she very properly did.

“To have acted otherwise would have risked depriving her client the right to make a will, when he might well have had testamentary capacity. It is only if he clearly did not that she would have been justified in refusing to act.” [Our emphases .]

The clear suggestion is that it is better to make the will rather than not.

The judge went on to say: “It is inevitable, particularly in a case in which the testator has ignored his solicitor’s warning, that there will sometimes have to be litigation. That there is litigation in this case is no reflection on Miss Hall or Dr White.” Practitioners may well not relish the possibility of later litigation so this is inevitably a judgement call.

Potential clients have the right to complain to the Legal Ombudsman for unreasonable refusal of service. The key word here is “unreasonable”. The Solicitors Regulation Authority (SRA) addressed the question to some extent on 25 March 2020 in its advice on common compliance queries. Discussing the implications of refusing to take an instruction for an emergency will, the SRA said: “Our Code of Conduct for firms (paragraph 4.2) says that you must make sure the service you provide to clients is competent and delivered in a timely manner taking account of your client’s attributes, needs and circumstances. If firms cannot comply with our Code, they should not take on the retainer. We would recommend you document all such decisions taken.”

The Law Society has released advice on best practice for solicitors, such as:

• be alert to the possibility of undue influence and the need to assess capacity when making wills
• make full notes of the meeting / discussion and the instructions that you receive, for your will file, and
• once circumstances permit, arrange to see the client to confirm the instructions in private, arrange a capacity assessment if needed, and re-sign the will.

The SRA stated it expects solicitors to comply with legal requirements and advise clients appropriately. It does not prescribe how these should be met or set its own specific requirements. Solicitors will need to ensure they are acting in the best interests of their client, in line with the SRA Principles. The SRA appreciates that “current circumstances may require solicitors to make difficult and novel judgements and where solicitors undertake these types of decisions, there is an expectation that they keep appropriate records and files notes”.

STEP has acknowledged that conducting a meeting over the telephone or via video-conferencing presents difficulties for practitioners who need to assess and record mental capacity.

It is clearly sensible for firms to formulate a policy on taking instructions remotely to assist lawyers.

Consent to record

While, generally, it is important to obtain consent to record any meetings to avoid falling foul of privacy laws, what if there are doubts over capacity? Given that capacity is time and issue specific (see sections 1 to 3 of the Mental Capacity Act 2005), how do you ascertain capacity for consent to record?

(a) Permission

Ask the client if they mind you recording the interview and explain what this means – that is, that there will be a permanent record of everything that is said between you, including their face and responses as well as any documents that are shared.

(b) Access to recording

Assuming it’s the case (which it should be), explain that the recording will be saved on a secure server that only those associated with the case can see, and that it will only be released to other parties if compelled to do so by court order or otherwise required as evidence.

(c) Client recap

Ask the client to recap their understanding of what will happen if the session is recorded.

Execution of a will

This is probably the area which is most on practitioners’ minds at the moment. As we all know, section 9 of the Wills Act 1837 provides that a will is not valid unless:

1. “it is in writing, and signed by the testator or by some other person in his presence and by his direction
2. “it appears that the testator intended by his signature to give effect to the will
3. “the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and
4. “each witness either:
   1. attests and signs the will, or
   2. acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness)” [our emphases].

It is this concept of “presence” which has caused much recent debate. Does presence require physical presence, or is a presence in time sufficient – even if it is digital?

Presence is relevant at two stages:

• for the testator’s signature or acknowledgement, and
• for the signature or acknowledgement of the witnesses.

An 18th-century case on execution (Casson v Dade (1781) 1 Bro C C 99) quoted with approval by Judge Colyer QC sitting as a High Court judge in Couser v Couser [1996] 1 WLR 1301 suggests that presence may be a fairly elastic concept. It is safe to say that the case has probably never received as much attention as it has in the last few days.

In Casson v Dade, a testator went to her attorney’s office to execute her will. The short note says: “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 accidentally 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.”

The witnesses then brought out the will, handed it to the testator, telling her that they had attested it. The Lord Chancellor accepted that it was properly attested.

In Couser v Couser the issue was whether the testator had acknowledged his signature in the presence of both witnesses who afterwards signed or acknowledged. He had acknowledged in the presence of one witness who then signed (Witness A). When her husband (Witness B) arrived, she got up from the table and stood about 10 feet away in the same room making coffee and continuing to voice her doubts about the validity of making a will without professional help. She did not expressly acknowledge her signature after the testator acknowledged his signature to her husband. Judge Colyer accepted the following points.

• Visual contact
  What was required for presence was that there should be visual contact between the parties concerned so that they could see if they chose to look.
• A witness must know what is going on
  Judge Colyer quoted Justice Gorell Barnes in Brown v Skirrow [1903] P 3, who said: “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 testratrix has signed this document’.” (See page 5.)
• Continuous execution
  The events surrounding the execution of the will constituted a continuous functioning of the three parties so that when the testator acknowledged his signature a second time, after the husband’s arrival, he did so in the presence of the wife; and her protests about the will’s validity constituted an acknowledgement of her earlier signature.

So where does that leave us in terms of practical suggestions for a self-isolating testator?

1. Make sure the electronic will cannot be edited

If you are sending the will electronically, send it as a PDF and ‘lock’ it to prevent it from being edited by others.

2. Witnesses in the house

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.

3. External witnesses and social distancing

We need to observe the latest government guidance on social distancing.

This is particularly relevant in the case of hospitals, care homes and hospices which have had to impose total restrictions on visitors, including solicitors. As the majority of these establishments currently have strict policies that staff should not witness wills, this has also raised concerns about how the most vulnerable will be able to make their wills.

In such cases, the first step must be to communicate with the relevant staff to see if they can assist and to find out if their policies have changed to accommodate the current situation.

It appears from the cases above that a line of sight is required, plus knowledge that a document is being signed. There are different ways to achieve this.

Testator signs will

1. T signs the will (wearing disposable gloves, if possible) within sight of the two witnesses. This could be on either side of a window or with the front door open.
2. Having signed, T puts the will outside the door and the witnesses (also wearing disposable gloves) pick it up and sign within sight of T.
3. If there are any capacity / undue influence issues, it would be helpful to have a photograph of T.

Signing on behalf of the testator

It is possible for another person to signon behalf of T, provided it is done in T’s presence and by T’s direction. A person signing on behalf of T can be a witness (see Barrett v Bem [2012] EWCA Civ 52) This may help reduce contact.

The will could be sent as a PDF to the witnesses, one of whom signs on behalf of T either outside a window or open door with T within sight. They then both sign as witnesses. A signature on behalf of T must be by T’s direction so it would be helpful to have a written or emailed instruction from T.

There is no presumption of knowledge and approval where a person signs on behalf of T so it would be helpful to amend the attestation clause to read: “Signed by [X] on behalf of [T] who was unable to sign because of social distancing requirements resulting from the Covid-19 pandemic. T had read and approved the content of the will.”

The witnesses then scan (or post) the will back to the will-drafter and a copy is sent to T to check.

A significant drawback is that if friends or neighbours are witnessing the will, they will have an opportunity to read it, which many people will not like.

Video conferencing options

The high tech and higher risk route, which many practitioners have been debating is using Zoom, FaceTime or similar video conferencing facilities. In this case, T might sign while the two witnesses watch proceedings. Ideally the will drafter would be watching to carry out a check on capacity, undue influence issues and so on. T would then perhaps scan the document to the witnesses, who would sign with T online and scan the signed document back – with the whole process being recorded.

If either side of a window is acceptable (Casson v Dade), it’s difficult to see why watching via a video link is not. The procedure will be one continuous process, as was the case in Couser v Couser.

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.”

In Couser v Couser, Judge Colyer made the obvious point that, 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. Even so, nobody wants to be a test case. Until we receive some clear unequivocal guidance on this point, if it is possible to use one of the other methods, it would clearly be safer to do so.

A note on LPAs

LPAs present much the same issues as wills though complicated by the additional requirement of a certificate provider.

The future

With the government considering emergency legislation, it is possible that we will get a change in the law to authorise video execution or to allow testators to make informal “privileged wills”.

The Law Commission conducted a public consultation on reforming the law of wills back in 2017. Their proposals included allowing for e-signatures and granting courts dispensing powers to approve wills which might otherwise fall foul of the strict formalities. Never have those proposals appeared more relevant or necessary than now.

In the meantime, though, it is a case of making use of what we have to do the best job possible for clients, while also avoiding any potential issues later down the line.