Non face-to-face Will Instructions
Taking instructions and arranging execution in relation to wills when it is not possible to meet with the client in person
In certain situations solicitors may not be able to meet clients in person, or may wish to avoid meeting them, for the safety of their clients, themselves and others. At the same time, they will, as far as possible, wish to maintain access to the legal services needed by the public; and this is particularly important where a client wishes to make or alter a will.
It will rarely be appropriate to delay complete fulfilment of an accepted instruction to have a will prepared and signed. We have therefore considered ways that solicitors are able to discharge their professional obligations.
This Advice & Information is intended to assist solicitors when taking instructions and arranging execution in relation to wills when it is not possible to meet with the client in person.
For any solicitor undertaking this type of work we would remind you that there is Vulnerable Clients Guidance available on our website.
Taking instructions remotely
Solicitors are reminded that the domicile of the client should be a primary consideration in accepting instructions. A will should not be prepared for a non-Scottish domiciled client without fully considering the legal issues involved and if necessary, taking advice on the law of their domicile.
1. Instructions from an existing client
These can be acted upon, but should be subject to confirmation at least by telephone and ultimately ideally by video call, to assess a client’s capacity and susceptibility to undue influence/circumvention and that there are no concerns in either regard.
Solicitors must exercise their own professional judgement, and take account of their existing knowledge and experience of the client, when making decisions on these matters. If there is any doubt in the mind of the solicitor the instructions should be declined. Arrangements could be made to meet with the client in person and/ or carry out further investigations in an attempt to alleviate the solicitor’s concerns or remove the doubt.
2. Instructions from a new client
Follow our AML team’s guidance here for Non face-to-face identification and verification.
A meeting between solicitor and client can take place over video call but there are still requirements on the solicitor to ensure that they are satisfied that the client has capacity and is not being unduly influenced into providing instructions on a will/an amendment to a will.
We appreciate this is more difficult when a client is not previously known to the solicitor.
Assessments of capacity and/or checks for undue influence should not be carried out solely over the telephone for new clients.
Solicitors must exercise their own professional judgement when making decisions on these matters. As is the case in 1. above, if the solicitor is any doubt, they should decline to carry out these instructions or, where possible, agree alternative arrangements to meet with the client.
3. Instructions from an existing or new client where no visual contact is possible
This situation will severely limit what a solicitor can do.
It can be explained to an existing, new or prospective client that they can write out, as clearly as possible, their own will or other testamentary instruction. Solicitors can confirm that subscription alone, while not ideal, will generally create valid testamentary instructions; and may also supply details of what is required for formal validity.
There are inherent risks with “homemade” wills, but there may be circumstances where they may be the only appropriate solution.
Will execution arrangements
This section is based on the assumption that the solicitor has taken instructions and has prepared a will or codicil for a client to sign. Therefore, they have had the opportunity, on a separate recent prior occasion, to assess the client’s capacity and susceptibility to undue influence/circumvention and had no concerns in that regard.
As part of good file management and record keeping, the work carried out by a solicitor in this regard, including the process followed, should be recorded on the file, for example, by way of a file note.
Where a video call is held, solicitors may wish to consider recording the call. If a video call is to be recorded and stored as part of the file the client’s consent will be required to allow the solicitor to do so. Solicitors should also be aware of any potential data protection implications storing the recording may have.
1. In-person witness available
The will can be posted or, where the client has facilities to print it off, sent by email (preferably in a format which cannot be altered) to the client for signing.
The client can be given directions to complete execution of the will in the normal way if a suitable person is available to witness the client's signature in the client's presence and the normal testing details can be completed. The will can then be returned to the solicitor in the normal way.
2. No in-person witness available
If a suitable person is not available and able to be physically present when the client is in a position to sign the will, witnessing can, we believe, be by video call. The solicitor and/or another suitable person can act as witness (the solicitor should ensure they are not excluded from being an effective witness, for example as an appointed executor or through a trustee company).
Steps to take:
- The solicitor would require to provide the client with the will in advance of the video call either by post or, where the client has facilities to print it off, by email (preferably in a format which cannot be altered).
- The video call should be used as a further opportunity to assess the capacity of the client and, using their professional judgement, the solicitor can consider whether any undue influence is being exerted on the client.
- The client should not sign the will in advance of the meeting.
- The client should show the unsigned will to their camera for the solicitor and/or other person to see on their screen(s).
- The client should sign the will, and then add the place and date of signing on the last page where indicated. The client should then show the solicitor the signed will.
- The client should be instructed to promptly return the signed hard copy to the solicitor or to send it to the other person who has witnessed signing. We consider that the witness, as long as they are satisfied that the client has actually signed each page, can on receipt of the signed will, legitimately sign and add their full name and address. The witness should add their signature to the document as soon as is reasonably practicable.
Note - We consider that this may be deemed to form one continuous process as required by the legislation but acknowledge that there is no authority on this point as yet. If, however, it was held in the future that this was insufficient to constitute one continuous process, the key point is that the client will have signed a fully valid will which can then be “set up” as part of the Confirmation process if required.
- If another person has acted as witness, the will should be sent to them to sign in the first instance and thereafter returned to the solicitor after the witness has completed their signing formalities.
3. No witness available
In circumstances where no witness is available to physically be with the client and there are no video facilities available, the client can be told that their signature alone is effective to make a valid will.
This can then be returned to the solicitor after signature, but the will or codicil ought to be replaced, if it is possible to do so, by a formally executed version at the earliest practicable opportunity. Otherwise, it will be necessary as part of the Confirmation process to "set up" the deed as having been signed by the client, by affidavit evidence as to their signature. The potential need for this additional step should be explained to the client and it should be noted on the solicitor’s file that this advice has been given.
Last reviewed: 5 January 2023