Drive Thru Will Signing – The Covid-19 Reality!

Never in my career did I ever envisage that I would have to take part in a drive thru signing to ensure that a client’s will was validly signed, but that is exactly what I found myself doing this week!

A client, with considerable health issues, was unable to find two suitable witnesses to watch him sign his will at home and he was extremely concerned that he might pass away leaving his estate to be administered under the intestacy laws.

Signing a Will – Witnesses

And so the drive thru signing was arranged so that the client could pull up outside the office and sign his will in his car, whilst myself and a colleague watched from a safe distance. The will was then passed through the open window of the car (by gloved hands) where it was signed by us both with the client watching from his car. The will was then placed in an empty locked cabinet, where it will remain for at least 48 hours to prevent any cross infection.

Examples of Will Signing

This is not the only unusual will signing I have come across recently. The COVID-19 social distancing restrictions mean that our offices are currently closed to clients and so they are unable to sign their wills in the usual way. Instead, we are sending clients their wills either electronically or by post and we are providing full instructions and guidance as to how their wills should be signed in order to be valid.

The response has been overwhelmingly positive, and clients have taken part in garden signings, over the fence signings and even on the street signings. We ask all clients to put safety first and to make a note of the circumstances in which their wills are signed, so that this can be stored with their will and used as evidence should the validity of the will ever be challenged. Some clients have recorded the signing process whilst others have taken photographs of themselves sitting in their gardens wearing gloves and masks with their witnesses a safe distance away.

So How Should a Will be Signed?

The law goes back to the Victorian era and can be found at Section 9 of the Wills Act 1837. Section 9 provides that:

A will must be in writing and signed by the testator (the person making the will), or by some other person in the testator’s presence and by the testator’s direction.
The testator’s signature must intend to give effect to the will.
The testator’s signature must be made or acknowledged in the presence of two or more witnesses who are present at the same time.
Each witness must sign the will in the testator’s presence (and preferably in the presence of the other witness).

Perhaps the most famous case that relates to the signing of a will and the meaning of ‘presence’ is that of Casson v Dade which was heard in 1781.

In this case the testator, Miss Honora Jenkins, went to her attorney’s office to sign her will. She signed the will in the office in the presence of two witnesses but then became faint and was taken outside to sit in her carriage with her maid. The witnesses remained in the office and signed the will in their capacity as the witnesses.

The will was challenged on the grounds that it had not been correctly signed as the witnesses did not sign in the presence of the testator. However, the maid gave evidence stating that at the moment the witnesses signed the will, the carriage horses reared up, causing the carriage to move into a line of sight with the office window and that had Miss Jenkins looked through the window, she could have seen the witnesses sign.

Although the days of horse and carriages are long gone, the meaning of ‘presence’ when signing a will has not changed and this is why I stress to clients the importance of signing their wills in accordance with the required legal formalities.

Will the Laws be Changed?

Clearly the laws regarding wills are old and were made in a time before the advancement of technology and the Ministry of Justice has been considering ways of bringing the law into the 21^st century. Whilst considerations have been ongoing for some time, they have been brought to the forefront by the COVID-19 outbreak. Current considerations include:

Reducing the number of witnesses from two to one, as is currently the requirement in Scotland.
Extending the provisions of Section 11 Wills Act 1837 which allows ‘a soldier being in actual military service or any mariner or seaman being at sea’ to make a will, even orally, without the formalities normally required by the Act.
Permitting beneficiaries to be witnesses. Section 15 of the Wills Act 1837 protects the testator from undue influence and potential fraud by restricting those benefiting from a will (or their spouse) to act as witness.
Dispensing power to allow the courts to look at individual wills and to decide whether they qualify as valid.
Allow remote witnessing by the use of video conferencing.
To allow the use of electronic wills and e-signatures.

Although the above would certainly modernise and ease the making of a will, any changes to the existing law would need to be carefully considered to protect against fraud and abuse, particularly for those most vulnerable.

I hope you have enjoyed reading this blog and if you have any questions regarding Wills, Probate, Powers of Attorney or Trusts, please telephone me on 01332 364436 or e-mail me at j.robinson@timms-law.com.

Jo Robinson
4th May 2020