Risk: Wills – the signing pitfalls

It is a scenario most solicitors will have had at one time or another, and private client solicitors more than most: the client has returned the documents that you sent, but has made a mistake with signing them. Perhaps they have signed them in the wrong place, or not in all the places marked, such as annexations or schedules, or done so without a witness or before a witness who is a beneficiary of the document. They might have sent you only a photocopy or scan and kept the principal themselves; or even worse, having sent you the copy and thinking all was in order, thrown the principal in the bin.

Most of the time such issues can be remedied, but that is not always the case; and it is by no means unknown for a client to die before the problem can be sorted out. Claims against a solicitor in such circumstances would depend on the particular facts and it is certainly not a given that the solicitor would be found to have been at fault. Any solicitors who think they may have such a situation on their hands should be in touch with their usual Lockton contact to discuss the benefits of early notification to the insurers.

Wills are unique

In few circumstances are the consequences of deficient signing more obvious than with a will. While most legal transactions require some sort of signature to give effect to them, wills are perhaps unique in that the deficiencies in signing them tend to come to light only when the one person capable of remedying those deficiencies is no longer around to do so.

Section 3(2) of the Requirements of Writing (Scotland) Act 1995 requires that a will be signed on every page by the testator and on the last page by a witness, and it is good practice that the witness should be someone who is not a beneficiary. While small failures in this regard will not necessarily be fatal, and even the absence of a witness’s signature can be corrected by affidavit evidence, they may delay the process of obtaining confirmation or even require an action to prove the tenor of the will. If the defects are sufficiently serious, the entire will may be rendered void, which could be catastrophic.

We all know that the easiest way to avoid this in the first place was always having the client come into the office – or for you to go out to the client – so that you could show them exactly what to do, witness the signature yourself and then keep your hands on the principal once finished; and indeed many private client lawyers will have been used to many such appointments in any given week. We would encourage returning to this practice as much as circumstances allow.

Covid wills

Of course, conditions during the pandemic and lockdowns made such meetings impossible for much of the time, and many “in person” interactions will have been replaced by phone calls or virtual meetings. These had their advantages, allowing questions to be asked and answered in real time, and attempts at signing held up to the camera for approval. Guidance was issued by the Law Society of Scotland when lockdown first began that a solicitor could witness a signature on a will which they had seen being applied over a virtual meeting, which addressed a pressing concern for the profession. Solicitors should be aware that these arrangements are among the things being retained post-Covid and have now been given status as Advice & Information (in Section F, Division I, Non face-to-face will instructions).

Caution in this area is strongly advised, so where the opportunity presents itself of contemporaneous in-person witnessing, solicitors and their clients would be well advised to avail themselves of it.

If a client’s circumstances or technological abilities precluded the chance of a video call, most solicitors in those circumstances will have been largely reliant on written instructions for signing or trying to give explanations over the phone. Isolation rules may have meant that a will has been validly signed but the signature was not witnessed. Although we have had no such reports so far, we are concerned about the possibility of wills executed in this way during Covid not having been checked properly as to execution, any necessary follow-up steps not having been taken, or the principal will not having been stored correctly.

Solicitors who have dealt with wills over the Covid period would do well to carry out an audit of those files to ensure that everything is in order, especially where the file is closed and therefore would not form part of the firm’s regular file review process. The best approach would be for a different fee-earner than handled the file to carry out the review, and to do so with the physical will itself rather than electronic copies.

Consequences of defective signing

While a lost principal will might be able to be remedied through an action to prove the tenor if sufficient supporting evidence of its contents exists, it will be more difficult to correct the situation if the will exists but was defectively signed and the testator has died. If the worst were to happen and a will were deemed invalid, there could be disastrous consequences for the intentions of the deceased and the inheritance of intended beneficiaries; and claims for compensation could come from several directions.

To protect against claims of this type, firms should implement a strict system of checks on the validity of signed wills before sending them for storage or returning to the client as requested. Where such a system does not already exist, we strongly recommend an early audit of the firm’s wills bank, and especially of any wills executed during lockdown. With luck, this should allow subsisting problems to be cleared up while the testator is still alive.

Recording instructions

Taking instructions from a testator is a high-risk activity and should always be carefully documented. Any disagreement about the contents of the will is unlikely to come to light until the testator is no longer around to confirm its contents. Disappointed beneficiaries may insist they knew the testator’s true intentions and that the will you have prepared is defective in not reflecting them. In such circumstances, without sufficient reliable evidence on your part, the court will have a hard time deciding between competing accounts.

To protect against such a scenario you might wish to consider having a witness present at the meeting, or making an audio recording of it, but either of those would be subject to the testator’s consent. The alternative and recommended course of action is to make a detailed attendance note, recording as comprehensively as you can the instructions given by the testator, any questions they ask of you and any advice you give or concerns you raise, as well as your considerations in satisfying yourself regarding the testator’s capacity. The note should be completed as soon as possible after the meeting takes place and saved or stored in your file. You might also consider putting a copy with the principal will to avoid it being destroyed. Try to imagine when composing the attendance note that it might come to be relied upon in the future, and consider whether it is sufficiently detailed that you would be confident in doing so.

If you will be attending on the client personally for signing of the will, take time at that meeting to make sure they have understood the contents and make a further attendance note reflecting that by reference to the same points above. If the will is to be posted out to the client for signature, put your explanation of the contents in the covering letter with a clear indication that they should contact you if they have any concerns.

Protecting against these risks

The good news is that most of the risks identified here can be reasonably easily guarded against. Encouraging clients to come into the office for signing is surely the most reliable way of having a will signed properly, while developing a set of clearly explained signing instructions which can be issued to each client should reduce the likelihood of mistakes in signing at home. Taking time to check the signed document when it is returned should catch mistakes at the point they are made and enable prompt rectification.

A review of all wills signed remotely during the Covid period should identify any in which mistakes in signing or other parts of the procedure have been made, and adding a physical check for the principal will in the rolling schedule of will reviews most private client departments operate will also identify missing principals while there is still time to have a new one signed.

Practitioners are also recommended to consider Lockton’s checklist for drafting a will, one of many resources available in the Resource Centre of our website, www.locktonlaw.scot