Executing wills and taking instructions remotely (Scotland)

Practical Law UK Practice Note w-024-6586 (Approx. 10 pages)

Executing wills and taking instructions remotely (Scotland)

by Practical Law Private Client

Scope of this note

Ordinarily, it is good practice to meet with your client face-to-face to take their instructions for a new will or codicil. It is also usually preferable to supervise and (where appropriate) witness the execution of the will or codicil in person. However, in some cases it may be impossible, inappropriate or even unsafe to meet clients face-to face (for example, if they are very frail or have underlying health issues, or if they do not live locally). Advising these clients to delay making a will or making changes to their existing will is not recommended, particularly if the client needs you to act on their instructions urgently (for example, because they are very unwell or are about to travel abroad for some time).

These issues were particularly problematic during the COVID-19 pandemic, when it was inappropriate (and impossible, during lockdowns) to meet personally with clients to take instructions and be present when they executed their wills. In recognition of this, the Law Society of Scotland provided guidance notes on best practice for taking instructions and arranging execution of wills remotely when it is not possible to meet a testator in person.

This note summarises the Law Society's guidance (which is still valid and continues to apply). For the guidance itself, see Law Society of Scotland: Rules and guidance: Division I: Advice and information: Non face-to-face will instructions.

Remember when considering these matters that it is important to:

Record which process you use (and the reasons why the process you have chosen is appropriate).
Ensure this record is retained in the client's file.

Taking will instructions remotely

Regardless of whether you are taking instructions in person or remotely, you must always satisfy yourself that the testator has the requisite testamentary capacity and that no undue influence or facility and circumvention is operating. For more information, see:

Existing clients: where video conferencing possible

If the testator is an existing client, is well-known to you and you are comfortable that they have capacity, then you may act on instructions they provide by telephone or in writing and prepare a draft will or codicil for their consideration.

Good practice is to confirm and discuss the client's instructions (and the draft will or codicil) by video link (for example, over Zoom, Facetime or similar). Confirming by telephone is possible, but only if there is no way of having some sort of visual contact with the client. This is especially important if the client sent initial instructions to you by email or letter.

Contacting the client about their instructions will allow you to:

Clarify any ambiguous details in the instructions.
Provide any necessary advice in relation to the instructions.
Double check the testator's capacity (at least to some degree).
Assess whether the testator may be vulnerable (and whether facility and circumvention or undue influence may be operating).

If the testator is happy with the draft will or codicil after having discussed it with you, you can prepare a signing copy to send out to the testator for signature, following one of the steps outlined below (see Signing wills and codicils remotely).

The Law Society emphasises that solicitors must use "their own professional judgement, and take account of their existing knowledge of the client" when deciding whether it is appropriate to take instructions from existing clients remotely (see Law Society of Scotland: Rules and guidance: Division I:Advice and information: Non face-to-face will instructions). For example, if the instructions seem out of character or there is anything else to make you doubt the validity of the instructions or the client's capacity, you should decline the instructions and, instead, offer to meet the client in person. This will allow you to manage the client relationship while enabling you to carry out a more accurate assessment of the situation (and, hopefully, then allow you to carry out the client's instructions).

New clients: where video conferencing possible

The position is less straightforward if the testator is a new client and tries to provide instructions remotely. If the testator is unknown to you, some form of meeting by video link must take place so that you may:

Assess the client's capacity and try to ensure no undue influence or facility and circumvention is operating.
Take the client's instructions and make sure they receive any relevant advice.
Verify the testator's identity for anti-money laundering (AML) purposes. The Law Society AML team provide guidance on carrying out remote identification verification. The steps required to carry out AML checks using video conferencing are as follows:
- Ask the client to take a clear, colour picture of their identification document (ID) (for example, their passport or photocard driving licence) and send this to you using a secure method (for example, by encrypted email).
- Also ask the client to email you a copy of some proof of address,
- Arrange a video call with the client. During the call, ask the client to hold up their ID next to their face. Compare the copy ID you have received from the client by email with the image on screen. Satisfy yourself that they are the same document and the picture of the client's face on the ID is a true likeness. Take a screen shot of the client holding up their ID if possible.
- Record the reasons behind adopting this revised remote identification and verification approach in the client/matter level risk assessment and note the risk grade of the relationship accordingly.
- If any red flags are raised, carry out further checks where necessary.

For further information on these steps, and on other methods of carrying out AML checks remotely, see Law Society of Scotland: Anti-money laundering: Non face-to-face identification and verification..

If video conferencing is used in this way to take instructions and verify identity, be aware of any associated data security risks involved and take steps taken to mitigate them (for example, through encryption). Also, as is the case when witnessing execution of a will by video link, take and retain a recording of the video call in case the will is challenged in the future. Ensure you obtain the client's consent to recording the call and consider any data protection obligations you and your firm may have by storing the recording.

The Law Society acknowledges that it may be difficult to assess capacity and determine whether there is any undue influence or facility and circumvention at play through video conferencing. Therefore, this approach may not be appropriate in every case. If you cannot identify the testator and satisfy yourself that they have capacity and that no undue influence or facility and circumvention is operating, you cannot take instructions.

New and existing clients: where video conferencing not possible

The Law Society advises that solicitors are "severely limited" in what they can do if they cannot hold some sort of video meeting with a client to take or confirm will instructions (see Law Society of Scotland: Rules and guidance: Division I:Advice and information: Non face-to-face will instructions).

Although confirming and discussing instructions by telephone is possible if the client is an existing client who you know well (see Existing clients: where video conferencing possible), ideally you should hold some sort of meeting where visual contact is possible (that is, either face-to-face or through video conferencing). Acting on instructions from an existing client with no visual contact should be avoided if at all possible.

If the client is a new client who is not known to you, and it is not possible to meet them face-to-face either in person or by video link, you cannot prepare a will for them based solely on instructions taken over the telephone or by email. During the COVID-19 pandemic the Law Society confirmed that the requirement to carry out identity checks and assessments of capacity cannot be waived despite the pressures and practical difficulties the pandemic caused, and that position has not changed.

Therefore, in these cases, you can advise the testator that, as a short-term solution, they may put in place a will by clearly writing out their wishes and signing this document at the end (on the last page if there is more than one). This can constitute a formally valid will. If the testator can find a suitable witness, you can also advise them of the witnessing requirements, so that the will may be self-evidencing (see General rules on execution of wills).

However, homemade wills made in this way are notoriously problematic (for examples of some of the issues that may arise, see Practice notes, Validity of wills: overview (Scotland): Language and Executing wills and codicils (Scotland): Difficult cases: envelope cases and pre-printed will forms). There is also no way of assessing capacity in these circumstances to ensure that the will is essentially valid (see Practice note, Validity of wills: overview (Scotland): Essential validity).

Therefore, advise the testator that:

This is a short-term solution and that, without meeting with you to give proper instructions, there is no guarantee that the will would be formally and essentially valid.
The will should be reviewed by a legal professional and, if necessary, replaced as soon as circumstances allow.

General rules on execution of wills

In all cases, whether execution is taking place remotely or in person, a will must be properly executed to be formally valid. The current rules on execution are set out in the Requirements of Writing (Scotland) Act 1995 (RWSA 1995). For full details of the execution requirements for wills and other testamentary writings under the RWSA 1995, see Practice note, Executing wills and codicils (Scotland): Formalities of execution under the Requirements of Writing (Scotland) Act 1995.

In summary, for a will to be formally valid, it must be:

In writing (section 1(2)(c), RWSA 1995).
Subscribed by the testator (section 2(1), RWSA 1995).

Writing and subscription by the testator are all that is required for a will to be formally valid.

In most cases a will should also be self-evidencing (or probative), or confirmation to the testator's estate will not be granted (unless the will is "set up" though application to the court under section 4 of the RWSA 1995). For more information, see Practice note, Executing wills and codicils (Scotland): The importance of self-evidencing (or probative) status.

For the will to be self-evidencing:

It must be signed by the testator on every sheet (section 3(2), RWSA 1995).
The testator's subscription must be witnessed by one witness signing (section 3(1), RWSA 1995).

For details of witness requirements, see Practice note, Executing wills and codicils (Scotland): Witnesses.

In summary, the witness must:

See the testator sign the will, or the testator must acknowledge their signature in the witness's presence.
Sign after the testator, on the last page of the will.
Be fully designed in the testing clause or equivalent by including their full name and address.

The act of execution (including attestation by the witness) should be one continuous act. Best practice is for the witness to sign immediately after the testator. Normally this requires the witness to be present with the testator when the testator signs the will. The witness's details may be inserted after subscription, provided this is done before the will is founded on in legal proceedings (section 3(3), RWSA 1995). Ideally, however, the witness's details should be inserted as soon as possible.

Signing wills and codicils remotely

It is not a requirement to supervise the signing of a will in person, although this is often preferable as it allows you to make sure it is validly executed. However, there may be cases where it is not possible to meet with the client face-to-face to witness them signing their will. There may also be cases where it is difficult for the testator to find an independent person to act as witness to the execution of the will (the witness does not have to be independent, but this is preferable; see Practice note, Executing wills and codicils (Scotland): Who can be a witness?).

These issues raised particular problems throughout the COVID-19 pandemic during lockdowns or when clients were self-isolating. In response to these issues, and to make sure clients could continue to put in place wills and codicils during the pandemic, the Law Society issued guidance on how testators may execute wills (and how wills could be witnessed) using video conferencing. This advice still applies, and the main points are outlined in the following sections. For the guidance itself, see Law Society of Scotland: Rules and guidance: Division I:Advice and information: Non face-to-face will instructions.

Where instructions have not already been taken

It is difficult to assess testamentary capacity if you do not meet with the testator face-to-face. You should therefore proceed with caution if a testator tries to provide instructions for a new will or codicil but cannot meet with you face-to-face. The Law Society's guidance on how to proceed in these circumstances is outlined above (see Taking will instructions remotely).

Remember that in all these cases (where you have not yet taken instructions from the client), you should not proceed if you have any doubts about a testator's capacity or feel you cannot properly assess it.

Where instructions have already been taken

Where you have already taken instructions from the testator (whether in person or remotely; see Taking will instructions remotely), it is presumed that you will have already satisfied yourself that the testator has capacity and there is no sign of undue influence or facility and circumvention operating (for more information on these matters, see Testamentary capacity (Scotland) and Practice note, Validity of wills: overview (Scotland): Fraud, facility and circumvention, and undue influence).

In-person witness available

In cases where the client can find a person to witness them signing their will in person, you can send a signing copy of the testator's will to them by post with detailed instructions on how to execute the will, including witnessing requirements. For standard documents that may be used and adapted for this purpose, see:

If the client prefers, you can email a signing copy of the will to them print out at home. If this is done, the Law Society recommends sending the will in a format which cannot be altered (for example, a PDF version). You should email the signing instructions at the same time.

No in-person witness available

If the testator cannot arrange for a suitable witness to be physically present with them when they sign their will, video conferencing may be used to enable you to act as a witness. Someone else in your firm may attend the video call to act as witness if you are unable to (for example because you are appointed as an executor).

In cases where video conferencing is being used, the following steps should be carried out:

You should send the testator a signing copy of the will beforehand, either by post or by email so they can print out a hard copy (see In-person witness available). Emphasise that to the client that they must not sign the will before the video call.
During the video call, carry out a further assessment of the client's capacity and satisfy yourself that there is no undue influence or facility and circumvention at play.
The client should show you the unsigned will on the video call so that you (or whoever is witnessing) can see it.
The client should then sign the will on each page, including the last page, on the video call so that you (or whoever is witnessing) can see them do this. The client should also add the date and place of signing where appropriate in the signing block on the last page of the will. The client should then hold up the signed will to the camera so you (or whoever is witnessing) can see it.
The client should then send the principal signed will to you (or whoever has witnessed the client signing the will) as soon as they can. On receipt of the signed will, you (or the witness, if someone else acted) should attest the will by signing it and adding the relevant information (that is, the witness's full name and address). For more details, see Practice note, Executing wills and codicils (Scotland): Witnesses.

The Law Society indicates that, provided the witness has seen the testator actually sign each page on video, they can validly sign and complete the signing details as witness when they receive the signed will (the witness should sign the will as soon as possible after receiving it). The Law Society considers that "this may be deemed to form one continuous process as required by the legislation", although they acknowledge there is no authority to confirm this yet (see Law Society of Scotland: Rules and guidance: Division I:Advice and information: Non face-to-face will instructions). However, even if it is later determined that this method of witnessing a will does not comply with the statutory requirements for it to be self-evidencing, it should still be valid and effective (because the testator has subscribed the document on the last page). The will would need to be "set up" under section 4 of the RWSA 1995 before applying for confirmation after the testator dies (for more information on setting up a will, see Practice note, Executing wills and codicils (Scotland): Remedying defects in execution under RWSA 1995). However, provided the will is set up in this way, its provisions (and the testator's wishes) should still be given effect.

If video conferencing is used for this purpose, be aware of any associated data security risks involved and take steps taken to mitigate them (for example, through encryption). Also, take and retain a recording of the video call in case the will is challenged in the future. Ensure you obtain the client's consent to recording the call and consider any data protection obligations you and your firm may have by storing the recording.

No witness available

If the testator cannot find a suitable person to be a witness, and they cannot access video conferencing facilities, you can send a signing copy of the will to them (see In-person witness available) and advise them to sign (and, ideally, date) their will on the last page before returning the signed will to you. This would result in a valid will, albeit one that is not self-evidencing.

If this approach is taken, the Law Society recommend that a replacement, fresh copy of the will is signed and witnessed, if possible and as soon as is practical. That way, the testator would have a valid, self-evidencing will. Otherwise, the will would need to be set up under section 4 of the RWSA 1995 before applying for confirmation after the testator dies (for more information on setting up a will, see Practice note, Executing wills and codicils (Scotland): Remedying defects in execution under RWSA 1995). Ensure that you explain this additional step to the client if they decide not to replace their will with a self-evidencing one.

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